Law Faculty Articles

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Browsing Law Faculty Articles by Subject "ACA"

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    Employer-based Health Care Insurance: Not So Exceptional After All
    (2014) Orentlicher, David; Robert H. McKinley School of Law
    For some time, it has been common for policy experts to criticize the U.S. health care system’s reliance on employer-sponsored insurance. For individuals, access to health care coverage before enactment of the Affordable Care Act (ACA) often depended on employment with companies that provided good benefits. For companies, the connection between employment and health care coverage is thought to impose a competitive disadvantage with overseas counterparts, who do not have to provide health care coverage as an employee benefit. But the problems with employer-based coverage have been overstated and misfocused. While the United States may be unusual in its reliance on employer-sponsored insurance, U.S. employers are not exceptional in terms of their role in financing health care spending. Employers in France, Japan, and the Netherlands also shoulder a high percentage of their countries’ health care costs. Moreover, American businesses likely would not see a decrease in their share of health care spending even if the United States overcame political obstacles and adopted a government-operated, single-payer system. Instead of contributing to the cost of their employees’ private health care coverage, employers would have to contribute to the cost of the payroll or other tax that would fund single-payer care. There is less benefit than meets the eye for employers from an elimination of employer-sponsored coverage. The adoption of ACA diminishes even further the incentives to discard employer-sponsored coverage. Experts rightly criticized the effect of employer-sponsored coverage on workplace mobility. But the "job lock" problem largely disappears under ACA. Now, the entrepreneur will be assured of access to federal subsidies for the purchase of affordable, community-rated insurance. If there is an argument for abandoning employer-based coverage, it lies in concerns about cost containment. While U.S. employers may not bear a disproportionate share of health care costs compared to their overseas counterparts, their total employment costs may be driven up because health care spending is so high in the United States. But even if individuals were to purchase their policies directly from insurers or receive their coverage from the government, concerns about costs would exist. What is more important is that governments in other countries play a much bigger role than does the U.S. government in limiting health care spending. In other words, the role the government plays in regulating health care prices — whether paid by private or public insurers — is much more important than whether employers play a major role in the health care system.
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    The Future of the Affordable Care Act: Protecting Economic Health More than Physical Health?
    (2014) Orentlicher, David; Robert H. McKinley School of Law
    While observers have focused on questions about the extent to which the Affordable Care Act (ACA) will improve access to care, reduce the costs of care, and improve the quality of care, commentary has largely ignored an even more important question — to what extent will ACA improve health? Surprisingly, the link between health care insurance and health is more tenuous than one might think. In the end, the ACA may do more to protect the financial health of poor Americans than to improve their physical health.
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    NFIB V. Sibelius: Proportionality in the Exercise of Congressional Power
    (2013) Orentlicher, David
    With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court’s recognition of an anti-coercion limit to the Spending Clause power. When it recognized an anti-coercion limit for ACA’s Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court’s new anti-coercion principle. It also indicates how this new principle can address a long-standing problem with the federal exercise of the Commerce Clause power — the federalization of local crime. Specifically, I argue first that we can best understand the Court’s anti-coercion principle not by parsing the text of its spending power analysis in isolation but by identifying a common strand of principle that the spending power analysis shares with the Court’s analysis of the individual mandate to purchase health care under the federal taxing power. Both analyses suggest a common principle of proportionality for the exercise of federal powers. If that is true for a Medicaid expansion enacted under the spending power and an individual mandate enacted under the taxing power, it also may — and should — be true for a criminal prohibition enacted under the commerce power, the primary source of authority for federal criminal statutes. If so, then the Court could find that Congress exceeds its authority when it imposes more severe sentences than do states for misconduct that is essentially local in nature.