Balkinization  

Thursday, March 29, 2012

Economic Ignorance in the ACA Arguments

Mark Tushnet

1. Insurance is not a Christmas-Club scheme for prudent saving in advance of anticipated expenses. (Justice Ginsburg was clearly being driven crazy by questions that treated insurance as a Christmas-Club scheme.)

2. Not all markets -- even markets with price controls -- are subject to moral hazard/adverse selection. (And -- a point about constitutional law -- imposing price controls on a market is, in all the cases of interest, a clearly constitutional exercise of the power to regulate interstate commerce. If doing so creates a moral hazard/adverse selection problem, addressing that problem would satisfy the "necessity" standard applied heretofore. Then either (a) there's no independent "proper" constraint on congressional power, or (b) as long as not all markets with price controls are subject to moral hazard/adverse selection problems, there's an obvious "limiting principle" at hand.

As Brad Long would say, that is all.

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