Why the Supreme Court Should Uphold the Individual Mandate

This afternoon, I participated in a debate with Rick Esenberg at the Marquette University Law School.  The debate was co-sponsored by the American Constitution Society and the Federalist Society.  I was asked to defend the constitutionality of the individual mandate imposed by the Affordable Care Act.  What follows are my prepared remarks.

Historians tell us that the connection between access to health insurance and employment was an accident. During World War II, wage and price controls prevented employers from increasing cash compensation for their workers. Employers wishing to recruit workers began to offer subsidized health insurance benefits as a way of avoiding this freeze on wages.

This is not a gift to workers from employers. We all pay for our health insurance with our labor. In return for our labor, we receive a combination of cash, employer provided benefits and non-cash prerequisites. The amount that employers pay towards our health insurance premiums is part of our income, which is why we are taxed on our employer-provided insurance above a certain level. The government encourages employers to offer health insurance benefits by allowing the employer to deduct these expenses as a business expense. About 60% of us receive health insurance through our employer.

The elderly and the disabled are not physically capable of working. Employer-based health insurance does not work for them. They receive their health insurance through Medicare. Participants pay certain deductibles and co-payments, but the bulk of the cost is imposed on the rest of us in the form of a payroll tax and the government then pays medical providers.

So our health insurance system has become tied to employment. As the costs of health care rise, it is increasingly difficult for middle and lower income Americans to afford health insurance unless they get it through an employer. This is because, as I mentioned, an employer will partially subsidize the cost of the premium as a component of total compensation. In addition, an employer can offer access to a plan that includes many other workers, thus broadening the risk pool and lowering the overall premium for each worker. An individual who seeks to purchase health insurance on their own gets neither of these two advantages. As health care costs continue to rise (an annual increase of about 8% in recent years), this cost differential becomes more significant.

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Spring and Fall

As Professor Mazzie noted below, April is National Poetry Month. (How have you been celebrating?) I thought I would take the occasion to post one of my favorites, from a poet who is not that well known any more: Gerard Manley Hopkins. Hopkins wrote poems in a peculiar style; among other things, the stress marks in the lines below are intended to indicate emphasis — I think the poem works better if you follow them.

Spring and Fall

to a young child

Márgarét, áre you gríeving
Over Goldengrove unleaving?
Leáves, líke the things of man, you
With your fresh thoughts care for, can you?
Áh! ás the heart grows older
It will come to such sights colder
By and by, nor spare a sigh
Though worlds of wanwood leafmeal lie;
And yet you wíll weep and know why.
Now no matter, child, the name:
Sórrow’s spríngs áre the same.
Nor mouth had, no nor mind, expressed
What heart heard of, ghost guessed:
It ís the blight man was born for,
It is Margaret you mourn for.

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Divorce Is Never Easy

Every few years, we can count on hearing social commentary on the alleged erosion of American values.  Predictably, marriage is part of the discussion, and inevitably, the American divorce rate is cited as a cause for concern.  The figure usually cited is that 50% of marriages in the U.S. end in divorce, although the true figure is somewhere between 40% and 50% overall, with higher rates among couples who married at younger ages and lower rates for couples who married at older ages. 

The usual trajectory of this discussion is for someone to claim that we have made divorce “too easy,” that marriages are viewed as throwaway commodities, and that the whole mess started in the 1970s when American states began to adopt no fault statutes.  Prior to that time, one spouse had to claim total innocence in the marital breakdown while proving “fault” by the other party in one of several designated categories – typically adultery, desertion, or physical or mental cruelty. This proof was a painful and distasteful process, and it could both lengthen the divorce process and make it more expensive. 

The adoption of no fault provisions made it possible for one party to obtain a divorce by alleging a ground such as “irretrievable breakdown” of the marriage without specifically attributing the blame to either partner.  Since U.S. divorce rates peaked in the early 1980s after the adoption of no-fault laws, social critics periodically argue that we should return to fault-based statutes to make divorce hard to obtain.

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