"Health Insurance as Health Care Regulation: Why the Regulatory Nature of Insurance Should Have Mattered, But Didn't, in the Obamacare Litigation" featuring BU Law Professor Abigail Moncrieff

  • Starts: 4:00 pm on Thursday, November 15, 2012
  • Ends: 5:30 pm on Thursday, November 15, 2012
The Boston University Health Policy Institute is pleased to announce the third seminar in its 2012 – 2013 Health Policy and Management Seminar Series. Professor Abigail Moncrieff will present “Health Insurance as Health Care Regulation: Why the Regulatory Nature of Insurance Should Have Mattered, But Didn't, in the Obamacare Litigation” on Thursday, November 15th, 2012, 4:00 – 5:30 pm, in SMG Room 306. Abstract There was an argument that Solicitor General Donald B. Verrilli could have made—but didn’t—in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance plays an unusually aggressive regulatory role in correcting those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to self-insure. This argument would have done a better job than the Solicitor General’s of aligning the individual mandate with existing Commerce Clause and Necessary and Proper Clause precedent, and it would have done a better job of addressing the conservative justices’ primary concerns with upholding the mandate. This Article hypothesizes that the Solicitor General made a strategic political choice to avoid this vision of the individual mandate because it would have provoked the strong political constraint against health care rationing—the freedom of health. It then considers the implications of that hypothesis for ongoing academic puzzles regarding the role of popular constitutionalism in Supreme Court decision-making and the role of the Solicitor General as an agent of either the Court or the President. The Article concludes that this story highlights a previously unexplored path for popular constitutionalism to impact Supreme Court holdings and that it highlights a particular circumstance in which the Solicitor General is emphatically an agent of the President, not the Court.
Location:
BU School of Management, 595 Commonwealth Ave, Room 306

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