Document Type

Article

Comments

Constitutional Uncertainty and the Design of Social Insurance: Reflections on the Obamacare Case (with Michael J. Graetz), 7 Harvard Law & Policy Review 343 (2013)

Abstract

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

2013

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