Nailed It!

| April 9, 2012 | 0 Comments

Donna Dubinsky had an op ed in the Sunday Washington Post that was the most insightful analysis of the Affordable Care Act and it’s constitutionality that I’ve seen.  According to legal experts who watched the oral arguments, the big question for Kennedy is what the limits are on Congress if they allow it to pass a law requiring individuals to purchase health insurance.  The so-called “broccoli question,” i.e. could they require people to buy broccoli because it’s healthy and would tend to reduce costs to the system and thereby reduce insurance premiums.  People I respect call this argument silly, but Ms. Dubinsky, a software entrepreneur explained why health insurance is unique better than anything I’ve read on the case.

Here’s her simple test:

There are two simple limiting conditions, both of which must be present: (1) it must be a service or product that everybody must have at some point in their lives and (2) the market for that service or product does not function, meaning that sellers turn away buyers. In other words, you need something, but you may not be able to buy it.

She then goes on to apply her test to some of the other situations raised by the conservatives to make the requirement seem unprecedented, including broccoli, health clubs and burial services, and shows how healthcare is different.  She is shocked that the defenders of the law didn’t come up with this simply construct.  So am I.

It was a brilliant piece and I hope Justice Kennedy reads the Sunday Post.


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Category: Healthcare Reform

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