Constitutional Uncertainty and the Design of Social Insurance: Reflections on the Obamacare Case (with Michael J. Graetz), 7 Harvard Law & Policy Review 343 (2013)
In 2010, Barack Obama signed the Patient Protection and Affordable
Care Act (the ACA), a complex statute of more than nine hundred pages that
fulfilled his goal of extending health-insurance coverage to virtually all
Americans—an objective that previous U.S. presidents had sought and failed
to achieve for a century. This legislation was hotly contested in the Congress,
passing with the support of very few Republicans in the Senate and
none in the House.
To broaden access to health insurance, the ACA relies primarily on two
devices: (1) an expansion to Medicaid—a joint federal-state healthinsurance
program for the poor and certain other persons with disabilities or
specified illnesses—to cover adults with incomes up to 133% of the poverty
level, and (2) refundable tax credits for families earning up to 400% of the
poverty level to subsidize purchases of private health insurance. The Medicaid
expansion includes a federal requirement that states expand their coverage
to meet the new, higher income threshold or face the potential
withdrawal of all federal Medicaid funds. Private insurers are required to
take all applicants, regardless of their health, and are prohibited from increasing
premiums based on preexisting medical conditions. The ACA also
contains an “individual mandate,” which requires adults not covered by
government-sponsored or employer-provided health insurance to purchase
health-insurance coverage or pay a penalty.
Date of Authorship for this Version
Graetz, Michael J. and Mashaw, Jerry L., "Constitutional Uncertainty and the Design of Social Insurance: Reflections on the Obamacare Case" (2013). Faculty Scholarship Series. Paper 4831.