April 24, 2012
In an April 16 article entitled “It’s Not About Broccoli: The False Case Against Health Care” published in The Atlantic, Professor Einer Elhauge ’86 tackles the primary case made against President Obama’s [’91] individual health care mandate.
Those against the mandate state that while Congress has the power to “regulate commerce,” it does not have the power to regulate purchases. Elhauge argues that a “limiting principal” to regulation does exist, one that the Supreme Court has articulated in previous cases. “[T]he problem is not that there is no limiting principle. It's that the challengers don't like the limiting principle that exists,” he wrote. He added, “The more fundamental problem with the challengers' method is that it asks judges to impose new constitutional limits based on their own policy preferences about how to treat various hypotheticals. This method is even worse than directly asking judges to create new limits based on their policy preferences, because it never confronts the question of whether the health insurance mandate itself is so clearly a bad policy.”
Elhauge has written extensively on the topic of the health care mandate. His article “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them,” published on April 13 in the New Republic, sparked much discussion. Georgetown Law Professor Randy Barnett, who helped form the commerce activity/inactivity distinction on which the opposition’s case is based, wrote a response to Elhauge’s New Republic article on the blog The Volokh Conspiracy. Elhauge responded on the same blog.
In late March, just prior to the oral arguments in the case, Elhauge discussed the two main cases against the mandate, in a Daily Beast piece titled “Economists Argue Over the Cost of Caring for the Uninsured.”
An expert in antitrust, contracts, and health care law, Elhauge served as chairman of the Antitrust Advisory Committee for the Obama campaign and is the author of several books, including “Statutory Default Rules” and “United States Antitrust Law & Economics.” Most recently, he edited and contributed to the “Research Handbook on the Economics of Antitrust Law” (Edward Elgar Publishing Ltd. 2012). He is the founder director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics