Posted by | February 3, 2011 16:36 | Filed under: Top Stories

by Stuart Shapiro

First it was Charles Fried who said that the legal argument against the Affordable Care Act was flawed.  Now conservative NYU Law Professor Rick Hills (pictured) also dismisses the contention that the federal government cannot regulate inaction, the core of the lawsuit seeking to overturn the vast expansion of medical access passed last year.

Hills frames the question this way: If the federal government can’t tell people they don’t have the right to refuse to buy insurance, then why was it okay for the federal government to regulate people’s “pacifism,” i.e., their refusal to fight in wars? Why is it okay for the government to regulate people’s refusal to serve on juries?

“If you can regulate inaction to raise juries, and you can regulate inaction to raise an army, then why isn’t there equally an implied power to conscript people to buy insurance, to serve the goal of regulating the interstate insurance market?” Hill asks.

The draft was held up as constitutional by the Supreme Court, but not under the “commerce clause” or the “necessary and proper clause,” which are being used to defend the individual mandate. But Hills said the larger point stands: Congress has the power to ban inaction.

The reality is that this won’t be settled for a year or (more likely) two when the case comes before the Supreme Court.  During that time, the popularity of the Act will increase as more and more people gain benefits from it.  At that point, if the Supreme Court overturns the act (unlikely in my view but not impossible), the public will demand that Congress replace it with something that passes muster.  It would be deliciously ironic if this lawsuit led to something closer to a single payer system.

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Copyright 2011 Liberaland
By: Stuart Shapiro

Stuart is a professor and the Director of the Public Policy
program at the Bloustein School of Planning and Public Policy at Rutgers
University. He teaches economics and cost-benefit analysis and studies
regulation in the United States at both the federal and state levels.
Prior to coming to Rutgers, Stuart worked for five years at the Office
of Management and Budget in Washington under Presidents Clinton and
George W. Bush.