Mariner, W.K., “Social Solidarity and Personal Responsibility in Health Reform,” Connecticut Insurance Law Journa 14 (2008): 199–288, at 205 (arguing that “universality and some degree of personal responsibility in coverage … pull insurance in opposite directions”); see also D.A. Stone, “The Struggle for the Soul of Health Insurance,” Journal of Health Politics, Policy & Law 18, no. 2 (1993): 287-317, 289-290 (contrasting the individualistic principle of actuarial fairness in health policy, which holds that “each person should pay for his own risk” with the principle of mutual aid, whereby “sickness is widely accepted as a condition that should trigger” a social solidarity response); L.F. Wiley, “From Patient Rights to Health Justice,” Cardozo Law Review 37, no. 3 (2016): 833-889, 859 (“[T] he ACA represents a major shift from an actuarial fairness approach to health care financing to one premised largely on mutual aid.”)Google Scholar

See, e.g., Wiley, L.F., “Health Law as Social Justice,” Health Law as Social Justice, 24, no. 1 (2014): 47–105, at 52 (“explor[ing] what it means to view health law as social justice [and] propos[ing] “health justice” as a distinct alternative to the “patient rights” and “market competition” paradigms that currently dominate health law scholarship, advocacy, and reform”); Wiley, supra note 1.Google Scholar

See, e.g. Durkheim, E., The Division of Labor in Society (Simon & Shuster ed. 1997, originally published in 1893) 24-25 (“[The] visible symbol [of social solidarity] is the law. Indeed where social solidarity exists, in spite of its non-material nature, it does not remain in a state of pure potentiality, but shows its presence through perceptible effects. Where it is strong it attracts men strongly to one another, ensures frequent contacts between them, and multiples the opportunities available to them to enter into mutual relationships…. [I] t is not easy to say whether it is social solidarity that produces these phenomena or on the contrary, whether it is the result of them. Likewise it is a moot point whether men draw closer to one another because of the strong effects of social solidarity, or whether it is strong because men have come closer together.”).Google Scholar

See, e.g. E. Klinenberg, “We Need Social Solidarity, Not Just Social Distancing,” New York Times, Mar. 14, 2020, available at <https://nyti.ms/39R336j> (last visited Apr. 19, 2020); E.A. Benfer and L.F. Wiley, “Health Justice Strategies to Combat COVID-19: Protecting Vulnerable Communities During a Pandemic” Health Affairs Blog, Mar. 17, 2020, available at <https://www.healthaffairs.org/do/10.1377/hblog20200319.757883/full/> (last visited June 23, 2020).+(last+visited+Apr.+19,+2020);+E.A.+Benfer+and+L.F.+Wiley,+“Health+Justice+Strategies+to+Combat+COVID-19:+Protecting+Vulnerable+Communities+During+a+Pandemic”+Health+Affairs+Blog,+Mar.+17,+2020,+available+at++(last+visited+June+23,+2020).>Google Scholar

See Jost, T.S., “Why Can't We Do What They Do? National Health Reform Abroad,” Why Can't We Do What They Do? National Health Reform Abroad, 32, no. 3 (2004): 433–441.Google Scholar

Starr, P., The Social Transformation of American Medicine (New York: Basic Books, 1982): at 239–242 (describing the failure of social insurance and rise of private commercial insurance in the US).Google Scholar

Id. at 310-315.Google Scholar

See the Social Security Amendments of 1965, Pub. L. 89–97, 79 Stat. 286; Jost, T., Disentitlement? The Threats Facing Our Public Health-Care Programs and a Rights-Based Response (Oxford: Oxford Univ. Press, 2003): at 85–86.Google Scholar

See generally Anderson, G.F. et al., “It's the Prices, Stupid: Why the United States Is So Different from Other Countries,” It's the Prices, Stupid: Why the United States Is So Different from Other Countries, 22, no. 3 (2003): 89–105, at 10; I. Papanicolas, L.R. Woskie, and A.K. Jha, “Health Care Spending in the United States and Other High-Income Countries,” Health Care Spending in the United States and Other High-Income Countries, 319, no. 10 (2018): 1024-1039.Google Scholar

Stone, supra note 1, at 290.Google Scholar

Id. at 287.Google Scholar

See Jost, T., Disentitlement, supra note 8, at 78-80.Google Scholar

Huberfeld, N.and Roberts, J.L., “Health Care and the Myth of Self-Reliance,” Health Care and the Myth of Self-Reliance, 57, no. 1 (2016): 1–60.Google Scholar

The coronavirus pandemic has forced some additional public deliberation along these lines. See, e.g. K. Politz and G. Claxon, “Changes in Income and Health Coverage Eligibility After Job Loss Due to COVID-19,” Kaiser Family Foundation, Apr. 14, 2020, available at <https://www.kff.org/report-section/changes-in-income-and-health-coverage-eligibility-afterjob-loss-due-to-covid-19-background/> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

Noble, A.and Chirba, M.A., “Individual and Group Coverage Under the ACA: More Patches To The Federal-State Crazy Quilt,” Health Affairs Blog, January 17, 2013, available at <http://healthaffairs.org/blog/2013/01/17/individual-andgroup-coverage-under-the-aca-more-patches-to-the-federalstate-crazy-quilt/> (last visited June 30, 2020); Mariner, W., “Health Insurance is Dead, Long Live Health Insurance,” American Journal of Law & Medicine 40, no. 2&3 (2014): 195–214.Google Scholar

567 U.S. 519 (2012).Google Scholar

See e.g. Baker, T., “Health Insurance, Risk, and Responsibility after the Patient Protection and Affordable Care Act,” Health Insurance, Risk, and Responsibility after the Patient Protection and Affordable Care Act, 159, no. 6 (2011): 1577–1662; T.S. Jost, “A Mutual Aid Society?” A Mutual Aid Society? 42, no. 5 (2012): 14-16; Wiley, supra note 1.Google Scholar

A. Kirzinger, C. Muñana, and M. Brodie, “6 Charts About Public Opinion On The Affordable Care Act,” KFF.org, November 27, 2019, available at <https://www.kff.org/health-reform/poll-finding/6-charts-about-public-opinion-on-the-affordable-care-act/> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

M. Sanger-Katz, “How Americans Split on Health Care: It's a 3-Way Tie,” New York Times, October 30, 2019, available at <https://nyti.ms/31ZsJcn>; A. Dunn, “Democrats Differ Over Best Way to Provide Health Coverage for All Americans,” Pew Research Center, July 26, 2019, available at <https://www.pewresearch.org/fact-tank/2019/07/26/democrats-differover-best-way-to-provide-health-coverage-for-all-americans/> (last visited June 30, 2020).; A. Dunn, “Democrats Differ Over Best Way to Provide Health Coverage for All Americans,” Pew Research Center, July 26, 2019, available at (last visited June 30, 2020).' href=https://scholar.google.com/scholar?q=M.+Sanger-Katz,+“How+Americans+Split+on+Health+Care:+It's+a+3-Way+Tie,”+New+York+Times,+October+30,+2019,+available+at+;+A.+Dunn,+“Democrats+Differ+Over+Best+Way+to+Provide+Health+Coverage+for+All+Americans,”+Pew+Research+Center,+July+26,+2019,+available+at++(last+visited+June+30,+2020).>Google Scholar

See Kaiser Family Foundation, “Public Opinion on Single- Payer, National Health Plans, and Expanding Access to Medicare Coverage,” November 26, 2019, available at <https://www.kff.org/slideshow/public-opinion-on-single-payernational-health-plans-and-expanding-access-to-medicarecoverage/> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

See Fuse, E.C. Brown and McCuskey, E.Y., “Federalism, ERISA, and State Single-Payer Health Care,” Federalism, ERISA, and State Single-Payer Health Care, 186, no. 2 (2020): 389–466.Google Scholar

D. Kurtzleben, L. Schapitl, and A. Hurt, “Health Care: See Where the 2020 Democratic Candidates Stand,” NPR. org, September 10, 2019, available at <https://www.npr.org/2019/09/10/758172208/health-care-see-where-the-2020-democratic-candidates-stand> (last visited June 30, 2020); Oberlander, J., “Lessons From the Long and Winding Road to Medicare for All,” American Journal of Public Health 109, no. 11 (2019): 1497–1500, at 1497.CrossRefGoogle Scholar

E.g., E. Warren, “My First Term Plan for Reducing Health Care Costs in America and Transitioning to Medicare for All,” available at <https://elizabethwarren.com/plans/m4a-transition> (last visited June 30, 2020); P. Buttigieg, “Medicare for All Who Want It: Putting Every American in Charge of Their Health Care with Affordable Choice for All,” available at <https://storage.googleapis.com/pfa-webapp/documents/MFAWWI_white_paper_FINAL.pdf> (last visited June 30, 2020), at 1-2, 6; A. Yang, “A New Way Forward for Healthcare in America,” Dec. 16, 2019, available at <https://www.yang2020.com/blog/a-new-way-forward-for-healthcare-inamerica/> (targeting particular health “outcomes”) (last visited June 30, 2020).+(last+visited+June+30,+2020);+P.+Buttigieg,+“Medicare+for+All+Who+Want+It:+Putting+Every+American+in+Charge+of+Their+Health+Care+with+Affordable+Choice+for+All,”+available+at++(last+visited+June+30,+2020),+at+1-2,+6;+A.+Yang,+“A+New+Way+Forward+for+Healthcare+in+America,”+Dec.+16,+2019,+available+at++(targeting+particular+health+“outcomes”)+(last+visited+June+30,+2020).>Google Scholar

H.R.1384 — 116th Congress (2019-2020), sec. 401(b)(2)(i), available at <https://www.congress.gov/bill/116th-congress/house-bill/1384/text#HC411C736C645465E987DBCD6881A49B5> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

See e.g., A. Clary, T. Kartika, J. Rosenthal, and E. Higgins, “States Develop New Approaches to Improve Population Health Through Accountable Health Models,” National Academy for State Health Policy, January 12, 2018, available at <https://nashp.org/states-develop-new-approaches-toimprove-population-health-through-accountable-health-models/> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

KFF, Public Opinion on Single-Payer, supra note 20, at fig. 7 & 8. But see Starr, P., Remedy and Reaction (New Haven: Yale University Press, 2011): 297 (“[I]n those debates [over Kennedy's proposals in the 1970s and Clinton's in the 1990s], many Republicans had accepted the legitimacy of universal coverage as a national objective. That is no longer true; the earlier moral consensus has disappeared.”).Google Scholar

J. Oberlander, supra note 22, at 1498.Google Scholar

See, e.g., J. Biden, “Health Care,” available at <https://joebiden.com/healthcare/> (“IV. Ensure Health Care is a Right for All, Not a Privilege for Just a Few,”); B. Sanders, “Health Care as a Human Right — Medicare for All,” available at <https://berniesanders.com/issues/medicare-for-all/>; E. Warren, “Health Care is a Basic Human Right,” available at <https://elizabethwarren.com/plans/health-care>. See also, e.g., Buttigieg, supra note 23; A. Yang, “A New Way Forward for Healthcare in America,” December 16, 2019, available at <https://www.yang2020.com/blog/a-new-way-forward-for-healthcare-inamerica/>, (“As Democrats, we all believe in healthcare as a human right.”) (last visited June 30, 2020).+(“IV.+Ensure+Health+Care+is+a+Right+for+All,+Not+a+Privilege+for+Just+a+Few,”);+B.+Sanders,+“Health+Care+as+a+Human+Right+—+Medicare+for+All,”+available+at+;+E.+Warren,+“Health+Care+is+a+Basic+Human+Right,”+available+at+.+See+also,+e.g.,+Buttigieg,+supra+note+23;+A.+Yang,+“A+New+Way+Forward+for+Healthcare+in+America,”+December+16,+2019,+available+at+,+(“As+Democrats,+we+all+believe+in+healthcare+as+a+human+right.”)+(last+visited+June+30,+2020).>Google Scholar

Reinhardt, U., Priced Out (Princeton: Princeton University Press, 2019): 50–62 (explaining the relationships between health care costs as a share of GDP and health care costs’ impact on household income).Google Scholar

J. Oberlander, supra note 22, at 1499.Google Scholar

Berk, M. L., Gaylin, D. S., and Schur, C. L., “Exploring The Public's Views On The Health Care System: A National Survey On The Issues And Options,” Health Affairs W596 (Nov. 14, 2006), DOI 10.1377/hlthaff.25.w596.CrossRefGoogle Scholar

J. Oberlander, supra note 22, at 1499.Google Scholar

E.g., Bednar, J., “The Political Science of Federalism,” Annual Review of Law & Social Science 7 (2011): 269-87, at 269, 270.CrossRefGoogle Scholar

E.g., Gluck, A.R. and Huberfeld, N., “What is Federalism in Healthcare For?” Stanford Law Review 70, no. 6 (2018): at 1689, 1696-99; A.R. Gluck, “Our [National] Federalism,” Yale Law Journal 123, no. 6 (2014): 1996-2043, at 1997-2000; E. Ryan, “Negotiating Federalism,” Boston College Law Review 52, no. 1 (2011) 1-136, at 10.Google Scholar

See Resnik, J., “Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s),” Jus Politicum 17 (2017): at 208, 225. But cf. D.B. Robertson, “The Bias of American Federalism: The Limits of Welfare- State Development in the Progressive Era,” Journal of Policy & History 1, no. 3 (1989): 261, at 270-79; R.L. Watts, “The American Constitution in Comparative Perspective: A Comparison of Federalism in the United States and Canada,” Journal of American History 74, no. 3 (1987): 769-92, at 769-70, 773.Google Scholar

U.S. Const., art. I, sec. 8.Google Scholar

U.S. Const., Am. 10.Google Scholar

U.S. Const., art. IV, cl. 2.Google Scholar

See Leonard, E.W., “New Deal Lessons for the Affordable Care Act: The General Welfare Clause,” University of Pennsylvania Journal of Constitutional Law 14, no. 1 (2012): 5, at 7 & n.7. While other facets of the constitution, like the individual rights discussed below, complicate the picture for compelling participation in a nationwide health finance system, the underlying structure of federalism certainly allows Congress to build such a system. Cf. J. Adler, “Fifth Circuit Declares Individual Mandate Unconstitutional, Punts on Whether Rest of ACA Must Fall,” available at <https://reason.com/2019/12/18/breakingfifth-circuit-declares-individual-mandate-unconstitutionalpunts-on-whether-rest-of-aca-must-fall/printer/> (last visited Sept. 10, 2020) (Dec. 18, 2019) (describing why a leading conservative legal scholar argues the Fifth Circuit opinion in Texas v. U.S. was “wrong”) (last visited June 30, 2020).Google Scholar

See, e.g., McCuskey, E.Y., Body of Preemption: Health Law Traditions & the Presumption against Preemption,” Temple Law Review 89, no. 1 (2016): 95–153, at 132-33.Google Scholar

See, e.g., P. Starr, supra note 26, at 252-266.Google Scholar

E.g., Texas v. U.S., 945 F.3d 355 (5th Cir. 2019) (Majority Opinion, IV.A.).Google Scholar

E.g., Watson, S.D., “Medicaid, Work, and the Courts: Reigning in HHS Overreach,” Medicaid, Work, and the Courts: Reigning in HHS Overreach, 46, no. 4 (2019): 887–891, at 887-888; S. Rosenbaum, “Invented Purposes and Blue Sky Predictions: Why the Trump Administration Cannot Win the Medicaid Work Requirement Cases,” Invented Purposes and Blue Sky Predictions: Why the Trump Administration Cannot Win the Medicaid Work Requirement Cases, 29, no. 1 (2019): 113-115, at 115-116, 124-125.Google Scholar

E.g., A. Weil, “A New Approach to the State-Federal Relationship in Health,” Health Affairs w188 (January 15, 2009).CrossRefGoogle Scholar

See McCuskey, E.Y., “Big Waiver under Statutory Sabotage,” Ohio Northern University Law Review 44, no. 3 (2019): 213-38, at 219-28.Google Scholar

E.g. Bagley, N.and Levy, H., “Essential Health Benefits and the Affordable Care Act: Law and Process,” Essential Health Benefits and the Affordable Care Act: Law and Process, 39, no. 2 (2014): 441–465.Google Scholar

Griffith, K., Evans, L., and Bor, J., “The Affordable Care Act Reduced Socioeconomic Disparities In Health Care Access,” The Affordable Care Act Reduced Socioeconomic Disparities In Health Care Access, 36, no. 8 (2017): 1503–1510.Google Scholar

J.C. Baumgartner, S.R. Collins, D.C. Riley, and S.L. Hayes, “How the Affordable Care Act Has Narrowed Racial and Ethnic Disparities in Access to Health Care,” CommonwealthFund. org (Jan. 16, 2020), available at <https://www.commonwealthfund.org/publications/2020/jan/how-ACAnarrowed-racial-ethnic-disparities-access> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

T. Jost, “Using the 1332 State Waiver Program to Undermine the Affordable Care Act State by State,” Commonwealth Fund, Oct. 30, 2018, available at <https://www.commonwealthfund.org/blog/2018/using-1332-state-waiver-program-undermineaffordable-care-act-state-state> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

E.g., Texas v. U.S., 945 F.3d 355 (5th Cir. 2019) (Majority Opinion, IV.A.). The uncertainty generated by litigation challenges has undermined the ACA, despite that the majority of those attacks ultimately have failed. K. Keith, “Diverse Stakeholders Ask Supreme Court to Promptly Hear Texas,” Health Affairs Blog, January 19, 2020, available at <https://www.healthaffairs.org/do/10.1377/hblog20200118.227701/full/> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

See Nathan, R.P., “Federalism and Health Policy,” Federalism and Health Policy, 24, no. 6 (2005): 1458–1466, at 1459; F. Maltzman and C.R. Shipan, “Beyond Legislative Productivity: Enactment Conditions, Subsequent Conditions, and the Shape and Life of the Law,” in J.A. Jenkins and E.M. Patashnik, eds., Living Legislation: Durability, change, and the Politics of American Lawmaking (Chicago: Univ. of Chicago Press, 2012): 118.Google Scholar

See E. Fuse Brown and E.Y. McCuskey, supra note 21.Google Scholar

See M.B. Lawrence, “Shared Federal Savings,” William & Mary Law Review (forthcoming 2020).Google Scholar

As discussed in Part III.D., Medicare beneficiaries pay a significant share of the costs of their care.Google Scholar

See Lawrence, supra note 53.Google Scholar

Hoffman, A., “Reimagining the Risk of Long-Term Care,” Reimagining the Risk of Long-Term Care, 16, no. 2 (2016): 151–231.Google Scholar

See Hoffman, supra note 56, at 175-176.Google Scholar

Schick, A., The Federal Budget: Politics, Policy, Process (Washington, DC: The Brookings Institution, 1995.Google Scholar

Id.Google Scholar

Weeks, E.and Sanford, P., “Financial Impact of the Opioid Crisis on Local Government: Quantifying Costs for Litigation and Policymaking,” University of Kansas Law Review 67, Symposium Issue (2019): 1061–1132.Google Scholar

Nichols, L. M. and Taylor, L.A., “Social Determinants as Public Goods: A New Approach to Financing Key Investments in Healthy Communities,” Social Determinants as Public Goods: A New Approach to Financing Key Investments in Healthy Communities, 37, no. 8 (2018): 1223–1230.Google Scholar

Fineman, Martha Albertson, The Autonomy Myth (City: Publisher, 2004): at 38 (“Justice demands that society recognize that caretaking labor produces a good for the larger society. Equality demands that this labor must not only be counted, but also valued, compensated, and accommodated by society and its institutions … .”).Google Scholar

Dorf, M.C., and Sabel, C.F., “A Constitution of Democratic Experimentalism,” A Constitution of Democratic Experimentalism, 98, no. 2 (1998): 267–473.Google Scholar

See E.R. Berchick, J.C. Barnett, and R.D. Upton, U.S. Census Bureau, Health Insurance Coverage in the United States: 2018 (November 2019), available at <https://www.census.gov/content/dam/Census/library/publications/2019/demo/p60-267.pdf> (In 2018, 55.1% of Americans were covered by employerbased private health insurance, 10.8% by directly purchased private insurance, 17.8% by Medicare, and 17.9% by Medicare) (last visited June 30, 2020).+(In+2018,+55.1%+of+Americans+were+covered+by+employerbased+private+health+insurance,+10.8%+by+directly+purchased+private+insurance,+17.8%+by+Medicare,+and+17.9%+by+Medicare)+(last+visited+June+30,+2020).>Google Scholar

Gruber, J., “The Tax Exclusion for Employer-Sponsored Health Insurance,” National Tax Journal 64, no. 2 (2011): 511–30.CrossRefGoogle Scholar

See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 657 (1995) (“The basic thrust of [ERISA’s] pre-emption clause … was to avoid a multiplicity of regulation in order to permit the nationally uniform administration of employee benefit plans.”).Google Scholar

26 U.S.C. § 36B.Google Scholar

Id. at § 4980H.Google Scholar

Centers for Medicare and Medicaid Services, a federal government agency, issues national coverage determinations (NCDs), which take precedence over the local coverage determinations (LCDs) and individual reimbursement decisions made by MACs. But the day-to-day tasks of administering benefits are largely in the hands of MACs who bid for jurisdictional contracts. See 42 U.S. Code § 1395kk–1.Google Scholar

Balanced Budget Act of 1997, Pub. L. 105-33 (1997). See generally Connelly, A., Healy, K., Melnick, H.and Roosevelt, J., Jr., “A New Look at Medicare Advantage: What Lawyers Need to Know to Advise or Contract with Medicare Advantage Plans Now,” A New Look at Medicare Advantage: What Lawyers Need to Know to Advise or Contract with Medicare Advantage Plans Now, 12, no. 1 (2018): 1–38; T.G. McGuire, J.P. Newhouse and A.D. Sinaiko, “An Economic History of Medicare Part C,” An Economic History of Medicare Part C, 89, no. 2 (2011): 289-332.Google Scholar

Medicare Prescription Drug, Improvement, and Modernization Act of 2003, Pub. L. 107-163 (2003).Google Scholar

Centers for Medicare and Medicaid Services, “2017 Share of Medicaid Enrollees in Managed Care — 2017,” Data.Medicaid. gov (updated June 11, 2019), available at <https://data.medicaid.gov/Enrollment/2017-Share-of-Medicaid-Enrollees-in-Managed-Care/ikdz-jh6q> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

The data reported by CMS includes all Medicaid beneficiaries enrolled in managed care plans, including in Vermont. Id. Green Mountain Care, the sole Medicaid managed care organization in Vermont, is state administered. The state agency contracts directly with health care providers. See Medicaid. gov, “Managed Care in Vermont” (August 2014) available at <https://www.medicaid.gov/medicaid-chip-program-information/by-topics/delivery-systems/managed-care/downloads/vermont-mcp.pdf> (last visited June 30, 2020). Therefore, the data on enrollment in Medicaid Managed Care plans does not precisely reflect the percentage of Medicaid enrollees who are in privately administered plans.+(last+visited+June+30,+2020).+Therefore,+the+data+on+enrollment+in+Medicaid+Managed+Care+plans+does+not+precisely+reflect+the+percentage+of+Medicaid+enrollees+who+are+in+privately+administered+plans.>Google Scholar

Section 1115 of the Social Security Act allows the Secretary of Health and Human Services to waive specific provisions of federal Medicaid law as part of a demonstration project that meets statutory criteria. 42 U.S.C. § 1315(a). See generally Buck, I.D., “Managing Medicaid,” Managing Medicaid, 11, no. 1 (2017): 107–140; L. Hermer, “Medicaid, Low Income Pools, and the Goals of Privatization,” Medicaid, Low Income Pools, and the Goals of Privatization, 17, no. 3 (2010): 405-22.Google Scholar

Pub. L. 109-171.Google Scholar

42 U.S.C. §1903(i)(26).Google Scholar

Nat’l Fed’n of Indep. Bus. v. Sebelius, 573 U.S. 682 (2014); 26 U.S.C. § 5000A.Google Scholar

Id. at 558.Google Scholar

Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 11081 (2017). The story doesn't end there — challengers have further asserted that with a zero-penalty, the individual mandate is unconstitutional because it is no longer a tax and is unsupportable under the commerce clause. Litigation is pending whether the mandate, if unconstitutional, is severable from the rest of the statute and if not, whether the entire Act must fall. Texas v. United States, 945 F.3d 355 (5th Cir. 2019), as revised (Dec. 20, 2019), as revised (Jan. 9, 2020).Google Scholar

42 U.S.C. § 300gg-13. The ACA requires that health plans cover certain preventive services, including specific preventive services for women, without any cost-sharing by individuals. The U.S. Department of Health & Human Services issued a rule that all FDA-approved contraceptives would be covered by this mandate. 76 Fed. Reg. 46,621-01 (Aug. 3, 2011) (codified at 45 C.F.R. pt. 147).Google Scholar

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).Google Scholar

Sepper, E., “Contraception and the Birth of Corporate Conscience,” American University Journal of Gender, Society, Policy & Law 22, No. 2 (2014): 303–342.Google Scholar

Pauly, M., “The Economics of Moral Hazard,” The American Economic Review, 58, no. 3 (1968): 531–537; R. Herzlinger, Market-Driven Health Care: Who Wins, Who Loses In The Transformation Of America's Largest Service Industry (Basic Books, 1999); T.S. Jost, Healthcare at Risk: A Critique of the Consumer-Driven Movement (Duke Univ. Press, 2007).Google Scholar

Wharam, J.F., D. Ross-Degnan, and Rosenthal, M., “The ACA and High-Deductible Insurance — Strategies for Sharpening a Blunt Instrument,” The ACA and High-Deductible Insurance — Strategies for Sharpening a Blunt Instrument, 396, no. 16 (2013): 1481–1484.Google Scholar

M. Chernew, Z. Cooper, E. Larsen-Hallock, and F. Scott Morton, “Are Health Care Services Shoppable? Evidence From the Consumption of Lower-Limb MRI Scans,” NBER Working Paper No. 24869 (Revised Jan. 2019), available at <https://www.nber.org/papers/w24869> (last visited June 30, 2020); Hall, M. A. and Schneider, C. E., “Patients as Consumers: Courts, Contracts, and the New Medical Marketplace,” Michigan Law Review 106, no. 4 (2008): 643–689.Google ScholarPubMed

T.S. Jost, “Affordability: The Most Urgent Health Reform Issue For Ordinary Americans,” Health Affairs Blog, February 29, 2016, available at <https://www.healthaffairs.org/do/10.1377/hblog20160229.053330/full/> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

Cf. L.O. Gostin and L.F. Wiley, Public Health Law: Power, Duty, Restraint (UC Press, 3d. ed. 2016) 19 (“The critical questions at the intersection of public health and justice are which people in society are most vulnerable and at greatest risk, how best to reduce the risk or ameliorate the harm, and how to fairly allocate services, benefits, and burdens.”)CrossRefGoogle Scholar

T.S. Jost, supra note 5, at 433-441. 89. Cf. Dworkin, R., “Justice in the Distribution of Health Care,” McGill Law Journal, 38, no. 4 (1993): 883–898, 898 (1993) (“[T]he question of health-care reform in America, including politically acceptable and fair health-care rationing, is ideologically leveraged. If we find, after all the fuss, that politically we can't do much to make the distribution of medical care more just, in spite of the apparent present opportunities to do so, then a pessimistic conclusion may be irresistible: we may abandon hope for any more widespread or general democratic concern for social justice. But if we do now make substantial and recognizable political progress in this one urgent matter, we may learn more, from the experience, about what justice itself is like, and we might find it to our taste, so that we can steadily, bit by bit, incrementally, fight the same battle in other areas … Health might not be more important than anything else — but the fight for justice in health might well be.”).Google ScholarPubMed

See J.C. Baumgartner, S.R. Collins, D.C. Riley, and S.L. Hayes, “How the Affordable Care Act Has Narrowed Racial and Ethnic Disparities in Access to Health Care,” Commonwealth Fund (Jan. 16, 2020), available at <https://www.commonwealthfund.org/publications/2020/jan/how-ACA-narrowedracial-ethnic-disparities-access> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

J. Oberlander, supra, note 22, at 1499 (describing “Medicare for all” as “the anti-ACA” because “it eschews instrumentalism and compromise, overturns the status quo, and disrupts most prevailing insurance arrangements”).Google Scholar

E.g., S. Kliff and D. Scott, “We Read 9 Democratic Plans for Expanding Health Care. Here's How They Work,” Vox, Jun. 21, 2019, available at <https://www.vox.com/2018/12/13/18103087/medicare-for-all-explained-single-payer-health-care-sanders-jayapal> (last visited June 30, 2020). (last visited June 30, 2020).' href=https://scholar.google.com/scholar?q=E.g.,+S.+Kliff+and+D.+Scott,+“We+Read+9+Democratic+Plans+for+Expanding+Health+Care.+Here's+How+They+Work,”+Vox,+Jun.+21,+2019,+available+at++(last+visited+June+30,+2020).>Google Scholar

J. Tolbert, R. Rudowitz, and M. Musumeci, “How Will Medicare- for-all Proposals Affect Medicaid?” Kaiser Family Foundation, Sept. 12, 2019, available at <https://www.kff.org/medicaid/issue-brief/how-will-medicare-for-all-proposalsaffect-medicaid/> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

Note, however, that the choice of private administration versus public administration, discussed below, makes a small concession to state authority in that states retain control over the regulation of private insurance companies, under the McCarran- Ferguson Act.Google Scholar

567 U.S. at 558.Google Scholar

S. Kliff and D. Scott, “We Read 9 Democratic Plans for Expanding Health Care. Here's How They Work,” Vox, Jun. 21, 2019, available at <https://www.vox.com/2018/12/13/18103087/medicare-for-all-explained-single-payer-health-care-sandersjayapal> (last visited June 30, 2020). (last visited June 30, 2020).' href=https://scholar.google.com/scholar?q=S.+Kliff+and+D.+Scott,+“We+Read+9+Democratic+Plans+for+Expanding+Health+Care.+Here's+How+They+Work,”+Vox,+Jun.+21,+2019,+available+at++(last+visited+June+30,+2020).>Google Scholar

Fuse Brown and McCuskey, supra note 21.Google Scholar

Wiley, L.F., “Medicaid for All? State-Level Single-Payer Health Care,” Medicaid for All? State-Level Single-Payer Health Care, 79, no. 4 (2018): 843–98, at 76.Google Scholar

McCuskey, E.Y., “Agency Imprimatur and Health Reform Preemption,” Agency Imprimatur and Health Reform Preemption, 78, no. 5 (2017): 1099–1167, at 1142-46.Google Scholar

Brooks, J.R., “Quasi-Public Spending,” Georgetown Law Journal 104 (2016): 1057–1110. (Please provide missing info.)Google Scholar

42 U.S.C. 18062.Google Scholar

Silver, C.and Hyman, D., Overcharged: Why Americans Pay Too Much for Health Care (Washington, DC: Cato Institute, 2018).Google Scholar

H.R.1384 — 116th Congress (2019-2020), sec. 701, available at <https://www.congress.gov/bill/116th-congress/housebill/1384/text#HC411C736C645465E987DBCD6881A49B5> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

Id. sec. 105 (automatic enrollment of residents), 202 (no cost sharing).Google Scholar

S.1129 — 116th Congress (2019-2020), sec. 1947(c), available at <https://www.congress.gov/bill/116th-congress/senatebill/1129/text> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

Id. sec. 202.Google Scholar

E.g., J. Biden, “Health Care,” available at <https://joebiden.com/healthcare/> (“I. Give Every American Access to Affordable Health Insurance,”) (last visited June 30, 2020).+(“I.+Give+Every+American+Access+to+Affordable+Health+Insurance,”)+(last+visited+June+30,+2020).>Google Scholar

See, e.g., K. Pollitz et al., “What's The Role of Private Health Insurance Today and Under Medicare-for-All and Other Public Option Proposals?” Kaiser Family Foundation, July 30, 2019, available at <https://www.kff.org/health-reform/issuebrief/whats-the-role-of-private-health-insurance-today-andunder-medicare-for-all-and-other-public-option-proposals/> (last visited June 30, 2020). (last visited June 30, 2020).' href=https://scholar.google.com/scholar?q=See,+e.g.,+K.+Pollitz+et+al.,+“What's+The+Role+of+Private+Health+Insurance+Today+and+Under+Medicare-for-All+and+Other+Public+Option+Proposals?”+Kaiser+Family+Foundation,+July+30,+2019,+available+at++(last+visited+June+30,+2020).>Google Scholar

Halpin, H.A. and Harbage, P., “The Origins and Demise of the Public Option,” Health Affairs 29, no. 6 (2010): 1117–1124.CrossRefGoogle ScholarPubMed

See Abelson, R.and M. Sanger-Katz, “Medicare for All Would Abolish Private Insurance. ‘There's No Precedent in American History,’” New York Times, March 23, 2019.Google Scholar

In 2019, Sen. Kamala Harris's campaign clashed with Sen. Bernie Sanders's campaign over whether such an approach can still claim the title “Medicare for All.” See L. Zhou and T. Golshan, “‘You Can't Call This Plan Medicare for All’: The Bernie Sanders Camp Pans Kamala Harris's Health Care Plan,” Vox (July 29, 2019), available at <https://www.vox.com/policyand-politics/2019/7/29/20732261/bernie-sanders-kamalaharris-medicare-for-all-private-insurance> (last visited June 30, 2020). (last visited June 30, 2020).' href=https://scholar.google.com/scholar?q=In+2019,+Sen.+Kamala+Harris's+campaign+clashed+with+Sen.+Bernie+Sanders's+campaign+over+whether+such+an+approach+can+still+claim+the+title+“Medicare+for+All.”+See+L.+Zhou+and+T.+Golshan,+“‘You+Can't+Call+This+Plan+Medicare+for+All’:+The+Bernie+Sanders+Camp+Pans+Kamala+Harris's+Health+Care+Plan,”+Vox+(July+29,+2019),+available+at++(last+visited+June+30,+2020).>Google Scholar

Washington SB 5526 (2019); Colorado HB 1004 (2019).Google Scholar

See S. Kliff, “The Lessons of Washington State's Watered Down ‘Public Option,’” New York Times, June 27, 2019.Google Scholar

As discussed in Part II, the Medicaid expansion population may be given some choice among Medicaid managed care plans, but these choices are quite constrained.Google Scholar

Biden for President, Health Care, available at <https://joebiden.com/healthcare/> (last visited June 30, 2020); Pete Buttigieg for America, “Medicare for All Who Want It,” available at <https://peteforamerica.com/policies/health-care/> (last visited June 30, 2020).+(last+visited+June+30,+2020);+Pete+Buttigieg+for+America,+“Medicare+for+All+Who+Want+It,”+available+at++(last+visited+June+30,+2020).>Google Scholar

M. Sanger-Katz, “Why the Less Disruptive Health Care Option Could Be Plenty Disruptive,” New York Times, Dec. 3, 2019, available at <https://www.nytimes.com/2019/12/03/upshot/public-option-medicare-for-all.html> (last visited June 30, 2020); M. Yglesias, “Joe Biden's Health Care Plan, Explained,” Vox, July 16, 2019, available at <https://www.vox.com/2019/7/16/20694598/joe-biden-health-care-plan-public-option> (last visited June 30, 2020). (last visited June 30, 2020).' href=https://scholar.google.com/scholar?q=M.+Sanger-Katz,+“Why+the+Less+Disruptive+Health+Care+Option+Could+Be+Plenty+Disruptive,”+New+York+Times,+Dec.+3,+2019,+available+at++(last+visited+June+30,+2020);+M.+Yglesias,+“Joe+Biden's+Health+Care+Plan,+Explained,”+Vox,+July+16,+2019,+available+at++(last+visited+June+30,+2020).>Google Scholar

R. Herzlinger and R. Boxer, “The Case for the Public Option Over Medicare for All,” Harvard Business Review, Oct. 10, 2019, available at <https://hbr.org/2019/10/the-case-forthe-public-option-over-medicare-for-all> (last visited June 30, 2020); B. Studebaker and N. J. Robinson, “Why a “Public Option” Isn't Enough,” Current Affairs, July 14, 2019, available at <https://www.currentaffairs.org/2019/07/why-apublic-option-isnt-enough> (last visited June 30, 2020); M. Sanger-Katz, “Why the Less Disruptive Health Care Option Could Be Plenty Disruptive,” New York Times, Dec. 3, 2019, available at <https://www.nytimes.com/2019/12/03/upshot/public-option-medicare-for-all.html> (last visited June 30, 2020). (last visited June 30, 2020); M. Sanger-Katz, “Why the Less Disruptive Health Care Option Could Be Plenty Disruptive,” New York Times, Dec. 3, 2019, available at (last visited June 30, 2020).' href=https://scholar.google.com/scholar?q=R.+Herzlinger+and+R.+Boxer,+“The+Case+for+the+Public+Option+Over+Medicare+for+All,”+Harvard+Business+Review,+Oct.+10,+2019,+available+at++(last+visited+June+30,+2020);+B.+Studebaker+and+N.+J.+Robinson,+“Why+a+“Public+Option”+Isn't+Enough,”+Current+Affairs,+July+14,+2019,+available+at++(last+visited+June+30,+2020);+M.+Sanger-Katz,+“Why+the+Less+Disruptive+Health+Care+Option+Could+Be+Plenty+Disruptive,”+New+York+Times,+Dec.+3,+2019,+available+at++(last+visited+June+30,+2020).>Google Scholar

A. McCrea, “Freedom-Loving Americans Should Demand Universal Healthcare,” Current Affairs, May 9, 2019, available at <https://www.currentaffairs.org/2019/05/freedom-lovingamericans-should-demand-universal-healthcare> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

W. Potter, “How the Health Insurance Industry (and I) Invented the ‘Choice’ Talking Point,” New York Times, Jan. 14, 2020, available at <https://www.nytimes.com/2020/01/14/opinion/healthcare-choice-democratic-debate.html> (last visited June 30, 2020).+(last+visited+June+30,+2020).>Google Scholar

Buck, I., “Affording Obamacare,” Affording Obamacare, 71, no. 2 (2020): 261–305; R. Dolan, “High-Deductible Health Plans,” Health Affairs Health Policy Brief, February 4, 2016, DOI: 10.1377/hpb20160204.950878.Google Scholar

Yglesias, supra note 117.Google Scholar

Fuse Brown and McCuskey, supra note 21.Google Scholar

Medicare for All Act of 2019, S. 1129, 116th Cong. (2019).Google Scholar

Nyman, J.A., “Is Moral Hazard Inefficient? The Policy Implications of a New Theory,” Health Affairs 23, no. 5 (2004) 194–199; S.A. Glied, M. Black, W. Lauerman, and S. Snowden, “Considering “Single Payer” Proposals in the U.S.: Lessons from Abroad,” Commonwealth Fund, Apr. 11, 2019, available at <https://www.commonwealthfund.org/publications/2019/apr/considering-single-payer-proposals-lessons-from-abroad> (last visited June 30, 2020).CrossRefGoogle ScholarPubMed

Glied, Black, Lauerman, and Snowden, supra note 125.Google Scholar

Lawrence, M.B., “The Social Consequences Problem In Health Care and How to Solve It,” The Social Consequences Problem In Health Care and How to Solve It, 13, no. 2 (2019): 593–660; E. Fuse Brown, “Irrational Hospital Pricing,” Houston Journal of Health Law & Policy 14 (2014): 11-58.Google Scholar

But cf. Hoffman, A., “Health Care's Market Bureaucracy,” Health Care's Market Bureaucracy, 66, no. 6 (2019): 1926–2022 (arguing that belief in “technocratic tinkering” to cure the ills of a market-based system is mistaken).Google Scholar

See Fuse Brown and McCuskey, supra note 21; L.F. Wiley, supra note 92, at 843-899.Google Scholar

Fuse Brown and McCuskey, supra note 21; McCuskey, E.Y., “ERISA Preemption Reform as Health Care Reform,” ERISA Preemption Reform as Health Care Reform, 48, no. 3 (2020): 450–461; M.B. Lawrence, “Sharing Federal Savings,” William and Mary Law Review (forthcoming) (proposing “accountable innovation grants” to facilitate state-based reform using federal dollars).Google Scholar

In a risk adjustment program, such as in the ACA's exchanges and Medicare Advantage, insurers that enroll disproportionately sick individuals are reimbursed based on the increased cost associated with such individuals. See Lawrence, M.B., “Regulatory Pathways to Promote Treatment for Substance Use Disorder or Other Under-Treated Conditions Using Risk Adjustment,” Regulatory Pathways to Promote Treatment for Substance Use Disorder or Other Under-Treated Conditions Using Risk Adjustment, 46, no. 4 (2018): 935–938. Though difficult to do, effective risk adjustment mitigates the incentive insurers otherwise have to discriminate. T.G. McGuire, “Achieving Mental Health Care Parity Might Require Changes in Payments and Competition,” Achieving Mental Health Care Parity Might Require Changes in Payments and Competition, 35, no. 6 (2016): 1029-1035. A reinsurance program assigns costs associated with the most expensive enrollees to a central payer, taking such individuals off insurers’ balance sheets and thereby removing insurers’ incentive to discriminate against them.Google Scholar

Fuse, E.C. Brown, “Consumer Financial Protection in Health Care,” Consumer Financial Protection in Health Care, 95, no. 1 (2017): 127–201.Google Scholar

See L.F. Wiley, supra note 92; M.B. Lawrence, supra note 53.Google Scholar