Health Insurance as Health Care Regulation: Why the Regulatory Nature of Insurance Should Have Mattered, But Didn't, in the Obamacare Litigation

There was an argument that Solicitor General Donald B. Verrilli could have made—but didn’t—in defending Obamacare’s individual mandate. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. It also would have better aligned the individual mandate with other existing precedents, and 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 mandate because it would have provoked the strong political constraint against health care rationing—the freedom of health. Speaker: Abigail Moncrieff, Peter Paul Career Development Professor and Associate Professor of Law at the Boston University School of Law & Visiting Associate Professor of Law at the University of Pennsylvania Law School