SCOTUS Blog’s Symposium on the Constitutionality of the ACA

I hope readers won’t mind if I take frolic and detour outside of the Letters Blogatory scope of coverage and provide a link to SCOTUSBlog’s interesting symposium on the constitutionality of the Affordable Care Act, and in particular the insurance mandate. It contains a highly interesting set of short pieces by scholars on the left and on the right.

I’ve got to say that I don’t’ really see the difficult issue some on the right claim to find in the mandate. Charles Fried’s essay is a pretty reasonable approach, I think.  I would add that the U.S. has a long history of mandatory insurance. It’s called Social Security (more formally, Old Age, Survivors, and Disability Insurance) and Medicare. The difference between these social insurance programs and the ACA is that the ACA mandates purchase of insurance from a private company rather than from the government. It would have been better, in my view, to legislate the purchase of public health insurance through taxes, which would probably have avoided the constitutional issue altogether, but the right was implacably opposed to that proposal. So I think the right’s position on this is highly ironic, assuming that those who are challenging the constitutionality of the ACA would, in general, agree that Social Security and Medicare are themselves constitutional. But maybe I am underestimating the radicalism of the opposition to government mandates on the right!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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