The Constitutionality of the Patient Protection and Affordable Care Act: Swimming in the Stream of Commerce

By Tribe, Laurence H. | Harvard Journal of Law & Public Policy, Summer 2012 | Go to article overview

The Constitutionality of the Patient Protection and Affordable Care Act: Swimming in the Stream of Commerce


Tribe, Laurence H., Harvard Journal of Law & Public Policy


In March of 2010, Congress enacted the Patient Protection and Affordable Care Act (1)--to which I will refer simply as "the Act"--to cope with what Congress believed was a crisis in the $2.5-trillion healthcare industry, which accounts for about 17% of our GDP and covers an array of providers, consumers, supply chains, and financing schemes operating across state borders.

Congress viewed this situation as a crisis. Tens of millions of people have no health insurance. Some lack coverage because they cannot afford the premiums, others are denied coverage by restrictive industry practices, and still others are uncovered because they choose to gamble that they will never need healthcare beyond what they can pay for out of pocket. Yet virtually all of these people participate actively in the healthcare market, and many end up consuming healthcare services for which others pay, because a basic feature of American law and culture is that hospitals cannot turn away people who need emergency treatment. In this respect, the healthcare market is unlike any other in our society. The result is that uninsured patients end up inefficiently shifting well more than $73 billion a year in healthcare costs to other market participants, raising the average family's annual insurance premium by about $1000, making health insurance unaffordable for even more people, increasing taxpayers' health-related burdens by at least $30 billion, and exacerbating the healthcare crisis. (2)

After extensive study, Congress addressed this vicious cycle through a comprehensive program of tax measures and market regulations. The Act builds on the existing nationwide system of employer-based health insurance by creating new tax incentives for businesses to pay for insurance for their employees. It provides for the creation of health-insurance exchanges through which individuals, families, and small businesses can leverage their collective buying power to obtain health insurance at more favorable rates; establishes federal tax credits to help households with incomes between one-and-one-third and four times the federal poverty level to buy insurance on those exchanges. The Act also expands Medicaid eligibility to those with incomes below one-and-a-third times the federal poverty level, with the federal government paying all of the added expense through 2016, and all but about 10% beyond 2020. (3) The Act forbids insurance industry practices that have kept individuals from obtaining and maintaining health coverage because of preexisting medical conditions, and it requires that premiums be based on community-wide criteria rather than on a person's individual medical history. (4) Finally, the Act amends the Internal Revenue Code in a manner that Congress expressly found essential to make these reforms of restrictive industry practices work. (5)

The Act does so by providing that any nonexempt individual who fails to maintain a minimum level of health insurance and who is not otherwise covered must pay a tax penalty calculated as a percentage of household income, capped at the price of the foregone insurance coverage, reported on the individual's federal income tax return, and assessed and collected in the same way other assessable tax penalties are civilly collected under the Internal Revenue Code. (6)

The Congressional Budget Office estimated that imposing this tax penalty as part of the Act's comprehensive reforms will induce about 16 million otherwise uninsured people under the age of sixty-five to purchase health insurance without waiting until they need care, (7) while raising about $4 billion in tax revenue from people who opt to pay the penalty rather than purchase the required insurance. (8) The other provisions, the Congressional Budget Office estimates, will reduce the number of uninsured people under the age of sixty-five by between 16 and 17 million, bringing to roughly 33 million the added number who will be insured. (9)

There are a number of excellent policy arguments both for and against the Act. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Constitutionality of the Patient Protection and Affordable Care Act: Swimming in the Stream of Commerce
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.