Saturday, January 22, 2011

Some points of increasing emphasis

The Department of Justice and its amici filed several briefs this week, in three different cases. And as this litigation (broadly defined) proceeds, it appears that the federal government and its friends have increasingly focused on three critical points:

* The commercial market that the ACA regulates is not (or not just) the health insurance market, but the health care services market. The reason this point might be important is that, although one can plausibly contend that the plaintiffs are "inactive" with respect to the health insurance market (and thus being compelled into the market), the same is not true of health care market. Virtually every American participates in that market, by choice or otherwise.

* The activity-inactivity distinction is a post-hoc, gerrymandered construct that has no basis in the Court's decisions. What is more, it is artificial and borders on the incoherent. What counts as activity or inactivity is in the eye of the beholder.

* The health care services market is unique: everyone participates, those who finance their care in a particular way (namely, without insurance) shift their costs to others, the government pays for much of the care, it constitutes a huge percentage of the nation's GDP, and we have resolved as a society that we will not simply deny the service to those who lack the means to pay. No other market contains these same features. This is potentially important because, if the market the ACA regulates is indeed unique, then the plaintiffs' slippery slope arguments (e.g., mandatory broccoli) might be de-fanged.

Readers should make their own judgments about the degree to which these contentions in the papers have been successful in establishing these points. But as we gradually get closer to the eventual destination of One First Street, N.E., I would expect these arguments only to grow in their significance.