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New Podcasts: The constitutionality of Obamacare

Last week, Point of Law wrapped up a featured discussion that we hope helped shed a light on the legal issues involved in the health care cases argued before the U.S. Supreme Court. We were grateful for the participation of some of the most prominent legal scholars and analysts. Two of those distinguished participants returned to discuss the many relevant legal issues and to expand on their commentary in the discussion.

In a podcast recording, former president of the ACLU and current professor of law at New York Law School, Nadine Strossen, analyzed the arguments of those challenging the individual mandate, saying:

There was so much emphasis in the briefs and the oral arguments challenging the law that this kind of regulation is different, 'never before.' That's why using words carefully, as all advocates do, the opponents and critics of the central minimum coverage provision refer to it as an individual mandate. Because they are trying to stress the notion that this is actual government compulsion to individuals to obtain some services that they otherwise would not; to obtain some product that they otherwise would not. Arguably, that's something that has never been done before. I disagree with that characterization, but I think that's really where the fight is going to come down.

Michael Rosman, general counsel of the Center for Individual Rights, in his podcast, articulated his argument by analyzing instead the arguments in support of the individual mandate:

[You've identified two different arguments] One is you cannot self-insure, which is basically the same thing as saying you can't just sit there and do nothing. In which case the question is, is it a regulation to force someone to purchase a product in a market, is that a regulation? The other thing they say is, well everybody, as you say, is going to buy health care at some point or another and we're simply regulating how they're going to pay for it. The problem with that of course is that; well it doesn't. It doesn't regulate how people pay for health care. You don't have to use your insurance in order to pay for health care.

In the context of the health care market, it's like asking whether subsidized student loans regulate the market for higher education services. Well, they certainly give people an incentive to use loans to pay for higher education services, but you can reasonably question whether that constitutes a regulation of the higher education services market. They certainly have given people an incentive to use their insurance to pay for health care, but they haven't said you have to. And they haven't otherwise regulated how you go about paying for health care. So arguably, and I think this is not a bad argument at all, the statute doesn't really regulate the market for health care in that way.

We hope to bring all of our distinguished discussants back to comment post-ruling to get their thoughts on the decision in light of their commentary. For our most recent Obamacare coverage, listen to the full versions of the podcasts and review the results of our online poll.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.