Paul Clement and Justice Kennedy

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6 Responses

  1. Norman Williams says:

    The States’ point-of-sale concession does show a lack of understanding of risk diversification and aggregation that underlies insurance, IF the purchaser can cancel the insurance following the need for it (i.e., following the surgery or treatment course). And that scenario does seem to follow from the States’ constitutional argument — if Congress cannot force you to participate initially in commerce against your will, surely it cannot force you to remain in commerce against your will. Hence, it is hardly a viable policy alternative to suggest that Congress can and should have limited the mandate to persons at POS.

  2. Joe says:

    The Paul Clement love is high among insiders.

    “the best argument I’ve ever heard”

    If you say so. As to how “masterful” the brief was, over at Balkanization the weakness of his arguments were ridiculed. Did he include some comment on how Madison and Hamilton “surely” would have agreed with him, like he did on direct taxes? I found that rather lame myself.

    I’m sure he will be “masterful” in defense of liberty when he argues against equality liberty for gays and lesbians. I know. I know. He’s “masterful,” not necessarily right.

  3. Mike Zimmer says:

    Eddie, I don’t understand your point: Are you suggesting that Congress lacks to authority to define health care insurance to cover all health care needs but has power to define some subset of all health care?

    Also, assuming the Rad Right wins and the ACA goes down, does that put in jeopardy Medicare? Sure it is single payor but is that difference significant? And, I suppose you could argue that it isn’t exactly “insurance” because what workers pay now covers the health care expenses of retirees now. But, isn’t figuring out such things exactly what we expect Congress to do (even though they do a radically poor job of it)?

  4. NC says:

    Edward, perhaps your last paragraph suggests that we should separate routine care and “insurance.”

  5. Edward Hartnett says:

    Norman: I agree that the “point-of-sale concession does show a lack of understanding of risk diversification and aggregation that underlies insurance, IF the purchaser can cancel the insurance following the need for it.” But that is a big IF. I don’t see why, given the concession, Congress couldn’t require everyone who receives health care to purchase an insurance policy with (say) a five year term. People don’t generally have the right to simply cancel their contracts, and a court that accepted a right not to enter into a contract does not have to accept a right to cancel contracts that are entered into.

    Joe: The “I” in the quote is Tom Goldstein, not me.

    Mike: No. My point is that Congress could get very nearly everything it got under the ACA, even accepting the challenger’s view of the commerce clause, by requiring anyone who purchases routine, ordinary, not-terribly-expensive health care to buy insurance at that point. If we had the sort of insurance we had a generation or two ago — which tended to cover only non-routine, very expensive care — it would be easier to see that requiring the purchase of insurance at the time of purchasing routine care would not mean that people would only buy insurance when they needed expensive care.

    NC: I think there are very good cost and public health reasons to make routine care cheap and accessible. But I do think it is at least somewhat misleading to call that insurance.

  6. EMS says:

    The reason the point of sale doesn’t work is that people are uninsurable when they arrive at the emergency room with a serious problem, such as a head injury. Insurance companies are happy to take money from healthy people, but someone at the e.r. door could have hundreds of thousands of dollars in bills.

    And the challengers to ACA don’t want to pay for routine health care through health insurances. Now they can pay for care themselves. Or, one point not made in the argument, they can defer care until they turn 65 and get Medicare, with the result that the first few years after 65 result in high medical bills for some individuals.