The Individual Mandate: Implications for Public Health Law

Patient Protection and Affordable Care Act, 26 U.S.C.A. § 5000A (West 2010).

Id.

42 U.S.C.A. § 18091 (West 2010).

Hall M. , “The Factual Bases for Constitutional Challenges to Federal Health Insurance Reform,” Wake Forest University Legal Studies Paper, no. 1717781 (2010), at 10, available at <http://ssrn.com/abstract=1717781> (last visited June 3, 2011).

Appellee's Opening and Response Brief, Commonwealth v. Virginia ex rel Cuccinelli, Nos. 11–1057, 11–1058 (4th Cir. March 28, 2011), at 62–64.

Rivkin D. B. Jr. Casey L. A. Balkin J. M. , “A Healthy Debate: The Constitutionality of an Individual Mandate,” University of Pennsylvania Law Review PENNumbra, 158 (2009): 93–118, 101, available at <http://www.pennumbra.com/debates/pdfs/HealthyDebate.pdf> (last visited June 3, 2011).

Id., at 99–101.

Richey W. , “Supreme Court Says No to Expedited Hearing on Health-Care Reform Law; Virginia's Attorney General Had Asked the Supreme Court to Bypass the Usual Appeals Process by Allowing His State's Challenge to the Obama Health-Care Reform Law to Proceed Directly to the High Court,” Christian Science Monitor, April 25, 2011 (noting that 26 states are in the Florida case and Virginia has its own case).

Cf., e.g., State of Florida ex rel Bondi v. United States Dep't of Health and Human Servs., No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011) (finding the mandate unconstitutional);

Virginia ex rel Cuccinelli v. Sebelius, 728 F. Supp.2d 768 (E.D. Va. 2010) (same) with

Thomas More Law Ctr. v. Obama, No. 10–2388, 2011 WL 2556039 (6th Cir. June 29, 2011) (upholding the mandate);

Mead v. Holder, No. 10–950 (GK), 2011 WL 611139 (D.D.C. Feb. 22, 2011) (upholding the mandate);

Liberty Univ. v. Geithner, 753 F. Supp.2d 611 (W.D. Va., 2011) (same).

Smith P. J. , “Federalism, Lochner and the Individual Mandate,” George Washington University Law School Public Law and Legal Theory Working Paper, no. 534 (2011), available at <http://ssrnabstract=1777208> (last visited June, 3, 2011).

H. R. Rep. No. 111–299, Pt 2, 111th Cong. 2d Sess. (2009).

Kaiser Family Foundation, Focus on Health: Summary of New Health Reform Law, April 15, 2011, available at <http://www.kff.org/healthreform/upload/8061.pdf> (last visited June 3, 2011).

26 U.S.C.A. § 5000A (c)(3) (West 2010).

Id., at § 5000A (c)(1)(B).

Id., at § 5000A (c)(3–4).

Id., at § 5000A (d).

Id., at § 5000A (g)(2).

42 U.S.C.A. §§ 300gg; 300gg-1 (West 2010).

Id., at § 18091 (a)(2)(1).

Chandra A. Gruber J. McKnight R. , “The Importance of the Individual Mandate-Evidence from Massachusetts,” New England Journal of Medicine 364, no. 4 (2011): 293–295.

42 U.S.C.A. § 18091(a)(2)(1) (West 2010).

Id., at § 18091(a)(1).

Romney M. , “Health Care for Everyone? We Found a Way,” Wall Street Journal, April 11, 2006, at A16.

Virginia ex rel Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 601–615 (E.D. VA., 2010).

See Richey, supra note 8.

Herzenhorn D. M. Pear R. , “As Vowed, House Votes to Repeal Health Care Law,” New York Times, January 20, 2011, at 1.

Galewitz P. , “Americans Remain Divided, Confused about Health Law as Anniversary Nears,” Kaiser Health News, March 18, 2011, available at <http://www.kaiserhealthnews.org/Stories/2011/March/18/healthreform-poll-kff.aspx?utm_source=khn&utm_medium=internal&utm_campaign=keyword> (last visited June 3, 2011).

Oberlander J. , “Under Siege - The Individual Mandate for Health Insurance and Its Alternatives,” New England Journal of Medicine 364, no. 12 (2011): 1085–1087, at 1086.

E.g., Mead v. Holder, No. 10 - 950 (GK), 2011 WL 61139 (D.D.C. Feb. 22, 2011)

Thomas More Law Ctr. v. Obama, 720 F. Supp. 2d 882 (E. D. Mich. 2010) aff'd No. 10–2388 WL 2556039 (6th Cir. June 29, 2011)

U.S. Citizens Ass'n v. Sebelius, 754 F. Supp.2d 903 (N.D. Ohio, 2010).

For a summation of the arguments, see Virginia ex rel Cuccinelli v. Sebelius, 702 F. Supp.2d 598, 608–615 (E.D. Va. 210).

Id; Brief for the Appellants, State of Florida v. United States Dep't Health and Human Services, Nos. 11–11067 (11th Cir., April 1, 2011), at 24–27.

Id., at 32–37, 50–55.

The Supreme Court has refused expedited review of the issue. See Virginia ex rel Cuccinelli v. Sebelius, 728 F. Supp. 768 (E.D. Va., 2010), cert denied 563 U.S. __, No. 10–1014 (April 25, 2011).

Florida ex rel Bondi v. United States Dep't of Health and Human Servs, No. 3:10-cv-RV/EMT, 2011 WL 723117 * 2 (N.D. Fla., March 3, 2011).

Oxford English Dictionary Online, s.v. “Mandate.”

See Smith , supra note 10;

Brennan P. M. , “The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett,” Villanova Public Law and Legal Theory Working Paper Series, no. 1769921 (February 2011), available at <http://ssrn.com/abstract=1769921> (last visited June 3, 2011).

Barnett R. , “Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional,” New York University Journal of Law and Liberty 5, no. 3 (2010): 581–637, at 607.

Wechsler H. , “Toward Neutral Principles,” Harvard Law Review 73, no. 1 (1959): 1–35.

E.g., Brief of Law Professors Barry Friedman, Matthew Adler et al. as Amici Curiae in Support of Defendants-Appellants, Commonwealth of Virginia ex rel Cuccinelli v. Sebelius, Nos. 11–11057 § 11–11058 (4th Cir., March 7, 2011).

Cf. Rivkin and Casey, supra note 8 (critiquing PPACA's mandate as regulating people merely on the basis of their “existence”).

Mahmoud-Davis S. “Note - Balancing Public Health and Individual Choice: A Proposal for a Federal Emergency Vaccination Law,” Health Matrix 20, no. 1 (2010): 219–257.

Opel D. J. Marcuse E. K. , “Historical, Legal and Social Aspects of School Immunization Mandates,” Current Problems in Pediatric and Adolescent Health Care 40, no. 3 (2010): 41–46.

I.R.C. §§ 105(b); 404 (West 2010).

Gostin L. O. , “The National Individual Health Insurance Mandate,” Hastings Center Report 40, no. 5 (Sept./Oct. 2010): 8–9.

For a fuller definition of the population perspective, see Parmet W. E. , Populations, Public Health and the Law (Washington, D.C.: Georgetown University Press, 2009): At 14–22.

Id., at 56–58.

Parmet W. E. , “Liberalism, Communitarianism, and Public Health: Comments on Lawrence O. Gostin's Lecture,” Florida Law Review 55, no. 5 (2003): 1221–1240 (discussing the action/inaction distinction in the context of vaccination and quarantine laws).

197 U.S. 11, 26 (1905).

Id., at 26–32.

Id., at 27.

Woodhouse D. Smith R. , “Global Public Goods and Health: Concepts and Issues,” in Smith R. , eds., Global Public Goods for Health: Health Economics and Public Health Perspectives (New York: New York University Press, 2003): 3–29, at 10–11.

See also Leonard E. W. , “The Public's Right to Health: When Patient Rights Threaten the Commons,” Washington University Law Review 86, no. 6 (2009): 1335–1395, at 1345–48 (explaining the collective action problems to which public health law responds).

Fine P. Eames K. Heyman D. L. , “‘Herd Immunity’: A Rough Guide,” Clinical Infectious Disease 52, no. 7 (2011): 911–916.

Thaler R. H. Sunstein C. R. , Nudge: Improving Decisions about Health, Wealth, and Happiness (New Haven: Yale University Press, 2008): At 3.

Cf. Epstein R. A. , “In Defense of the ‘Old’ Public Health: The Legal Framework for the Regulation of Public Health,” Brooklyn Law Review 69, no. 4 (2004): 1421–1470 (arguing that the scope of public health law should be limited to controlling infectious diseases and abating nuisances).

Story M. , “Creating Healthy Food and Eating Environments: Policy and Environmental Approaches,” Annual Review of Public Health 29, no. 1 (2008): 253–272.

Gupta G. R. , “HIV Prevention 4: Structural Approaches to HIV Prevention,” The Lancet 372, no. 9640 (2008): 764–775.

See Epstein , supra note 54.

Mill J. S. , On Liberty, Shields C. V. , ed. (New York: Macmillan Publishing Company, 1956): At 13.

For a review of the literature, see Ogolla C. P. Shaw F. , “Is the Repeal of Mandatory Motorcycle Helmet Legislation a Contributing Factor to Traumatic Brain Injury as a Public Health Problem? Recommendations for the Future,” Michigan State Journal of Medicine and Law 14, no. 1 (2010): 163–213.

Picou v. Gillum, 874 F. 2d 1519 (11th Cir. 1989).

Pope T. M. , “Is Public Health Paternalism Really Never Justified? A Response to Joel Feinberg,” Oklahoma City University Law Review 30, no. 1 (2005): 121–207, at 169–170.

See Ogolla and Shaw, supra note 59, at 209, quoting J. Donne, Devotions Upon Emergent Occasions (1624): at 1089.

Id. For example, the network of organizations known as ABATE (which originally stood for “A Brotherhood Against Totalitarian Enactments”) lobbies against helmet laws and seeks to “unite” motorcycle riders. For information about ABATE and links to the websites of the different state organizations, see National Abate Links, available at <http://www.abatemiregion5.com/INDEX_files/Page0003.htm> (last visited June 23, 2011).

Studies show that motorcycle helmet laws are remarkably effective in achieving compliance. Neiman M. , “Motorcycle Helmet Laws: The Facts, What Can Be Done to Jump-Start Use and the Ways to Cap Damages,” Journal Health Care Law and Policy 11, no. 2 (2008): 215–248.

Institute of Medicine, America's Uninsured Crisis: Consequences for Health and Health Care (Washington, D.C.: National Academics Press, 2009): At 5.

Id., at 7.

Id., at 99–102.

Brief for Appellant Kathleen Sebelius, Commonwealth of Virginia, ex rel Cuccinelli v. Sebelius, Nos. 11–1057 & 11–1058 (4th Cir. February 28, 2011), at 11,

quoting Congressional Budget Office, Key Issues in Analyzing Major Health Insurance Proposals (2008): At 13, available at <http://www.cbo.gov/ftpdocs/99xx/doc9924/12–18-KeyIssues.pdf> (last visited June 22, 2011). Scholars have questioned the extent to which the uninsured are free riders who add costs to the system.

See Kahn D. A. Kahn J. H. , “Free Rider - A Justification for Mandatory Medical Insurance under Health Reform?” University of Michigan Public Law Working Paper no. 235 (2011), available at <http://ssrn.com/abstract=1784495> (last visited June 3, 2011)

Hoffman A. K. , “Oil and Water: Mixing Individual Mandates, Fragmented Markets, and Health Reform,” American Journal of Law and Medicine 36, no. 1 (2010): 7–77.

42 U.S.C.A. § 1809(a)(2)(F) (West 2010).

See Brief for Appellant Kathleen Sebelius, supra note 68, at 34.

42 U.S.C.A. § 1395dd (West 2010)

Furrow B. R. , Health Law ( St. Paul , West Group: 2000): At 524–525.

See Institute of Medicine, supra note 65, at 29–31.

In an amicus brief filed before the United States Court of Appeals for the Fourth Circuit, the Young Invincibles, an organization purporting to represent young people, argued that they are disproportionately uninsured not because of choice, but “because of circumstances.” Amicus Brief of Young Invincibles in Support of Appellant, Commonwealth of Virginia ex rel Cuccinelli v. Sebelius, Nos. 11-1-57 & 11–1058 (4th Cir., March 7, 2011), at 9.

Gostin L. O. Burris S. Lazzarini Z. , “The Law and the Public's Health: A Study of Infectious Disease Law in the United States,” Columbia Law Review 99, no. 1 (1999): 59–128. 75.

See Kaiser Family Foundation, supra note 12.

Lantos J. D. , “Vaccine Mandates in Historical Context,” in Lantos J. D. , “Controversies in Vaccine Mandates,” Current Problems in Pediatric and Adolescent Health Care 40, no. 3 (March 2010): 51–58, at 51. On its website, the CDC posts “7 true stories” of what can happen to unvaccinated children. These stories are clearly designed to suggest to parents that their own children will be at great risk if they are not vaccinated. Centers for Disease Control and Prevention, “Vaccines and Preventable Diseases: Vaccines: Unprotected Stories,” available at <http://www.cdc.gov/vaccines/vpd-vac/unprotected-stories.htm> (last visited June 23, 2011).

See Ogolla and Shaw, supra note 59, at 189.

Id.

Id.

See Neiman , supra note 64, at 215–248

citing General Accounting Office, “Highway Safety: Motorcycle Helmet Laws Save Lives and Reduce Costs to Society” (1991), at 3, available at <http://archive.gao.gov/219+9/14486.pdf>.

Id., at 221.

See Ogolla and Shaw, supra note 59.

People v. Fries, 250 N.E.2d 149, 150 (Ill. 1969) overruled by People v. Kohrig, 489 N.E. 2d 1158 (Ill. 1986).

Picou v. Gillum, 874 F.2d 1519, 1520 n.2 (11th Cir. 1989) (collecting cases).

See Ogolla and Shaw, supra note 59, at 190.

Id., at 190.

Task Force on Community Preventive Services, “Recommendations Regarding Interventions to Improve Vaccination Coverage in Children, Adolescents, and Adults,” American Journal Preventive Medicine, 18, no. 1S (2000): 92–96.

Parmet W. E. , “Pandemic Vaccines - The Legal Landscape,” New England Journal of Medicine 362, no. 21 (2010): 1949–1952, at 1951–1952 (describing requirements imposed by some hospitals).

Parmet W. E. , “Pandemics, Populism and the Role of Law in the H1N1 Vaccine Campaign,” Saint Louis University Journal of Health Law and Policy 4, no. 1 (2011): 113–153.

See Lantos , supra note 76, at 51.

Colgrove J. , State of Immunity: The Politics of Vaccination in Twentieth-Century America (Berkeley: University of California Press, 2006): At 26–38.

Zucht v. King, 260 U.S. 174 (1922).

E.g., National Vaccine Information Center, “State Law & Vaccine Requirements,” available at <http:www.nvic.org/Vaccine-Laws/state-vaccine-requirements.aspx> (last visited June 3, 2011)

Kata A. , “A Postmodern Pandora's Box: Anti-Vaccination Misinformation on the Internet,” Vaccine 28, no. 7 (2010): 1709–1715.

Scripps Howard News Service, “Vaccinations,” Ohio University Poll, no. 7 (September 2007).

See Colgrove , supra note 91, at 219.

See Parmet , supra note 89.

See Parmet , supra note 88.

Keeton V. F. Chen A. K. , “Immunization Updates and Challenges,” Current Opinions in Pediatrics 22, no. 2 (2010): 234–240.

Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, “Measles - United States, January 1-April 25, 2008,” Morbidity and Mortality Weekly Report, 57, no. 18 (2008): 1–4, available at <http://www.cdc.gov/mmwr/preview/mmwrhtmlmm57e501a1.htm> (last visited June 23, 2011).

See Neiman , supra note 64, at 231.

See Keeton Chen , supra note 98.

Mead v. Holder, No. 10 - 950 (GK), 2011 WL 611139 * 3 (U.S.D.C. Feb. 22, 2011).

“Massachusetts Changes Its Seat-Belt Sign, But the Message Stays the Same,” New York Times, December 6, 1986, at 1–68.

Houston D. J. Richardson L. E. Jr. , “Getting Americans to Buckle Up: The Efficacy of State Seat Belt Laws,” Accident Analysis and Prevention 37, no. 6 (2005): 1114–1120

Cohen A. Einau L. , “The Effects of Mandatory Seat Belt Laws on Driving Behavior and Traffic Fatalities,” Review of Economics and Statistics 85, no. 4 (2003): 828–843.

The PPACA litigation is somewhat unique because the plaintiffs are challenging the mandate several years before it goes into effect. In addition, the states are trying to bring claims regarding a mandate that affects individuals. As a result, the Justice Department has raised a number of jurisdictional defenses in each of the cases. The lower courts, however, have generally rejected those defenses, at least as far as the state plaintiffs are concerned.

See State of Florida ex rel Bondi v. United States Dep't of Health and Human Servs., No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011);

Virginia ex rel Cuccinelli v. Sebelius, 728 F. Supp.2d 768 (E.D. Va. 2010). A few of the cases brought by individual plaintiffs, however, have been dismissed on the basis of standing.

See New Jersey Physicians, Inc. v. Obama, 757 F. Supp. 2d 502 (D.N.J., 2010) (dismissing complaint for lack of standing);

Liberty Univ. v. Geithner, 753 F. Supp.2d 611 (W.D. Va. 2010) (dismissing claims of individual plaintiffs for lack of standing, but finding that Liberty College has standing);

Shreeve v. Obama, No. 1:10-CV-71, 2010 WL 4628177 (D. Tenn. Nov. 4, 2010) (dismissing complaint and finding among other things that plaintiffs lack standing to challenge PPACA as a whole).

But see Thomas More Law Ctr. v. Obama, No. 10–2388, 2011 WL 2556039 *6 (6th Cir. June 29, 2011) (finding that plaintiffs have standing);

Goudy-Bachman v. U.S. Dep't of Treasury, 764 F. Supp. 2d 684 (M.D. Pa., 2011) (finding that plaintiffs have standing and that their claims are ripe);

Liberty Univ. v. Geithner, 753 F. Supp.2d 611 (W.D. Va. 2010) (dismissing claims of individual plaintiffs for lack of standing, but finding that Liberty College has standing).

197 U.S. 11, 38–39 (1905).

State of Florida ex rel Bondi v. United States Dep't of Health and Human Servs., No. 3:10-cv-91-RV/EMT, 2011 WL 285683 (N.D. Fla., Jan. 31, 2011);

Virginia ex rel Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010).

E.g., 728 F. Supp. 2d at 784 (citing Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922).

State of Florida ex rel Bondi, No. 3:10-cv-RV/EMT, 2011 WL 285683 at * 3–4;

Hall v. Sebelius, No. 08–175 (RMC), 2011 WL 891818 (D.D.C. March 16, 2011).

See, e.g., Hammer v. Dagenhart (The Child Labor Case), 247 U.S. 251 (1918) (striking down federal child labor law because it infringed on power of the states);

Lochner v. New York, 198 U.S. 45 (1905) (striking down state labor law as exceeding scope of the police power).

Law S. , “Human Papillomavirus Vaccination, Private Choice, and Public Health,” University of California at Davis Law Review 41, no. 5 (2008): 1731–1772, at 1744.

42 U.S.C.A. § 1396s (West 2010).

I.R.C. § 36B (West 2010) (tax credit for individuals);

I.R.C. § 45R (West 2010) (tax credit for small employers);

42 U.S.C.A. § 18071 (reduced cost sharing for individuals with income between 100 and 400 percent of the federal poverty level).