Commerce games and the individual mandate

Georgetown Law Journal

Volumn 100, Issue 4, 2012, Pages 1117-1175

  Henry, Leslie Meltzer ^a,b   Stearns, Maxwell L ^a,c  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

^b JOHNS HOPKINS UNIVERSITY   (United States)

^c UNIVERSITY OF VIRGINIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84860188715     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (95)

1. For a variety of perspectives, see Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J. L. & LIBERTY 581, 605 (2010);
2. Patrick McKinley Brennan, The Individual Mandate, Sovereignty, and the Ends of Good Government: A Reply to Professor Randy Barnett, 159 U. PA. L. REV. 1623, 1624-25 (2011);
3. Mark A. Hall, Commerce Clause Challenges to Health Care Reform, 159 U. PA. L. REV. 1825, 1829-40 (2011);
4. Timothy S. Jost, State Lawsuits Won't Succeed in Overturning the Individual Mandate, 29 HEALTH AFF. 1225, 1226-28 (2010);
5. Andrew Koppelman, Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, 121 YALE L.J. ONLINE 1, 6-7 (2011), http://yalelawjournal.org/2011/04/26/koppelman.html;
6. Ilya Shapiro, State Suits Against Health Reform Are Well Grounded in Law-And Pose Serious Challenges, 29 HEALTH AFF. 1229, 1229-30 (2010).
7. Florida, 648 F.3d 1235, cert. granted sub nom. Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 603 (Nov. 14, 2011) (No. 11-393), and 132 S. Ct. 604 (Nov. 14, 2011) (No. 11-398), and 132 S. Ct. 604 (Nov. 14, 2011) (No. 11-400). The Court will hear oral arguments between March 26 and March 28, 2012. See Supreme Court of the United States, October Term 2011-For the Session Beginning March 19, 2012, SUPREME COURT OF THE UNITED STATES (Dec. 19, 2011), http://www.supremecourt.gov/oral-arguments/argument-calendars/ MonthlyArgumentCalMAR2012.pdf.
8. See, e.g., Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 46-47 (2010) (relying on cumulative economic impact of uninsured); Barnett, supra note 2 (relying on action/inaction distinction); Hall, supra note 2, at 1831-38 (rejecting action/inaction distinction); Koppelman, supra note 2 (suggesting that nonpurchase may be free-riding economic activity).
9. See ERIC RASMUSEN, GAMES AND INFORMATION: AN INTRODUCTION TO GAME THEORY 247 (4th ed. 2007) (distinguishing separating and pooling equilibria);
10. Marie Allard, Jean-Paul Cresta & Jean Charles Rochet, Pooling and Separating Equilibria in Insurance Markets with Adverse Selection and Distribution Costs, 22 GENEVA PAPERS ON RISK & INS. THEORY 103 (1997) (analyzing pooling and separating equilibria in the context of health insurance).
11. Several commentators have thus framed the debate over the ACA's individual mandate in terms of a free-rider problem. Free riding describes the failure of some who enjoy the benefits of a public good to contribute to its procurement. Not surprisingly, free riding therefore tends to discourage the supply of public goods. MAXWELL L. STEARNS & TODD J. ZYWICKI, PUBLIC CHOICE CONCEPTS AND APPLICATIONS IN LAW 14 (2009) (describing free riding and offering illustrations). In this context, the argument is that those who fail to purchase health insurance can be described as free riding on the overall health system when they seek medical services at the time of need-for example, through emergency-room care- with costs passed on to the insured in the form of inflated premiums.
12. For recent commentary, see Douglas A. Kahn & Jeffrey H. Kahn, Commentary, Free Rider: A Justification for Mandatory Medical Insurance Under Health Care Reform?, 109 MICH. L. REV. FIRST IMPRESSIONS 78, 80-82 (2011), http://www.michiganlawreview.org/assets/fi/109/kahn.pdf (calling the individual mandate's free-rider justification exaggerated because the mandate will simply reallocate the costs of those who legitimately cannot afford coverage from the insured, through premium increases, to taxpayers, through program subsidies);
13. Nicholas Bagley & Jill R. Horwitz, Commentary, Why It's Called the Affordable Care Act, 110 MICH. L. REV. FIRST IMPRESSIONS 1, 3-5 (2011), http://www.michiganlawreview.org/assets/fi/110/bagleyhorwitz.pdf (rejecting the characterization of free riding employed by Kahn and Kahn and arguing that the individual mandate's forced risk spreading reduces the adverse consequences of those forced to free ride due to, among other reasons, financial inability to insure);
14. Douglas A. Kahn & Jeffrey H. Kahn, Commentary, The Unaffordable Health Act: A Response to Professors Bagley and Horwitz, 110 MICH. L. REV. FIRST IMPRESSIONS 16 (2011), http://www.michiganlawreview.org/assets/fi/110/Kahn2.pdf (defending their refutation of the free-rider characterization of the individual mandate). While risk spreading potentially ameliorates some of the difficulties that can be described as free riding, absent a more specific game implicating commerce, this insight alone is insufficient to justify congressional reliance on the Commerce Clause to implement the individual mandate scheme. That is because in the course of exercising police powers, states routinely address matters of public policy that also implicate the problem of free riding. And yet, the existence of state regulatory powers does not, of its own force, justify congressional reliance on the Commerce Clause to address the same substantive subject matter. Free riding in insurance markets, for example, can be a state regulatory problem, a federal regulatory problem, or both, depending on the specific game implicated in the relevant insurance context. In Parts II and III, infra, we assess the games that Congress has implicitly relied upon the Commerce Clause to remedy as a means of identifying the specific game that Congress seeks to resolve through the individual mandate. We then demonstrate how this particular game implicates not only economic, but more importantly, political externalities among states, thus justifying reliance on congressional Commerce Clause powers. Neil Siegel has recently expanded upon his earlier thoughtful work with Robert Cooter arguing that, properly read, Article I, Section 8 empowers Congress to enact those policies that individual states are structurally ill-suited to resolve as a result of interstate externalities.
15. See Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115, 144-50 (2010) (devising a comprehensive theory of collective-action federalism). Siegel maintains that the individual mandate prevents individuals from free riding on benevolence by forcing beneficiaries of health care services to internalize costs, and that because complex insurance markets operate interstate, states cannot force this internalization on their own.
16. See Neil S. Siegel, Free Riding on Benevolence: Collective Action Federalism and the Individual Mandate, 75 LAW & CONTEMP. PROBS. (forthcoming 2012) (manuscript at 37-54), available at http://papers.ssrn.com/abstract-id= 1843228 (expanding a theory of collective action federalism to defend the individual mandate). In contrast to the approach taken by these scholars, our approach specifically focuses on the role of Commerce Clause doctrine, affirmative and dormant, and the importance of distinguishing political from economic externalities, both of which can extend beyond the borders of particular states. Our analysis demonstrates that the critical feature that distinguishes when congressional reliance on the Commerce Clause is or is not justified does not depend merely on whether the effect of the regulated subject matter is contained within a state, but rather, on whether the effect undermines the coordinated legal regimes of other states or would, if permitted to stand, encourage other states to replicate the challenged policy, thus promoting a regime of mutual defection among states. This analysis further allows us to devise a common theory, one that embraces both sides of the Commerce Clause and that ties Congress's reliance on its commerce power to enact the individual mandate to the theory of political, rather than economic, union. See infra Part II (employing game theory to analyze Commerce Clause doctrines and to distinguish political and economic externalities); infra Part III (extending the theory to defend the individual mandate and ACA based upon a theory of political union developed in Part II).
17. See, e.g., MATTHEW BUETTGENS, BOWEN GARRETT & JOHN HOLAHAN, URBAN INST., WHY THE INDIVIDUAL MANDATE MATTERS: TIMELY ANALYSIS OF IMMEDIATE HEALTH POLICY ISSUES 7-8 & tbl.5 (Dec. 2010), http://www.rwjf.org/files/research/ 71601.pdf (observing that the individual mandate lowers premiums by reducing adverse selection).
18. See SARA R. COLLINS & JENNIFER L. KRISS, THE COMMONWEALTH FUND, ENVISIONING THE FUTURE: THE 2008 PRESIDENTIAL CANDIDATES' HEALTH REFORM PROPOSALS 3-15 (Jan. 2008), http://www.commonwealthfund.org/~/media/Files/ Publications/Fund%20Report/2008/Jan/Envisioning%20the%20Future %20%20The%202008%20Presidential%20Candidates%20Health%20Reform%20Proposals/ Collins-envisioningfuture2008candplans-1092%20pdf.pdf (comparing the health care policy proposals of four Republican and four Democratic candidates).
19. CTRS. FOR MEDICARE & MEDICAID SERVS., U.S. DEP T OF HEALTH & HUMAN SERVS., NATIONAL HEALTH EXPENDITURE PROJECTIONS 2008-2018, at 1, http://www.cms.hhs.gov/NationalHealthExpendData/downloads/proj2008.pdf (last visited Dec. 30, 2011). National health expenditures include private health spending, government public health spending, and government investment in medical research and development. See id. at 2, 4 tbl.2.
20. Cf. CONG. BUDGET OFFICE, THE BUDGET AND ECONOMIC OUTLOOK: AN UPDATE 9 tbl.1-3 (Aug. 2011), http://www.cbo.gov/ftpdocs/123xx/doc12316/08-24- BudgetEconUpdate.pdf
21. Health Care Spending in the United States and Selected OECD Countries, THE HENRY J. KAISER FAMILY FOUND. (Apr. 28, 2011), http://www.kff.org/insurance/ snapshot/OECD042111.cfm.
22. The Long-Term Outlook for Health Care Spending, CONG. BUDGET OFFICE, http://www.cbo.gov/ftpdocs/87xx/doc8758/MainText.3.1.shtml (last visited Dec. 10, 2011).
23. CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR & JESSICA C. SMITH, U.S CENSUS BUREAU, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2009, at 22 (Sept. 2010), http://www.census.gov/prod/2010pubs/p60-238. pdf
24. In 2008, premium increases outpaced growth in worker's earnings by more than three to one. See THE HENRY J. KAISER FAMILY FOUND., HEALTH CARE COSTS: A PRIMER, 10 fig.9 (Mar. 2009), http://www.kff.org/insurance/upload/7670-02.pdf
25. See Chichun Fang, The Dynamics of Health Insurance Coverage, in LABOR AND EMPLOYMENT RELATIONS ASSOCIATION SERIES: PROCEEDINGS OF THE 62D ANNUAL MEETING 33, 41-42 (Françoise Carré & Christian Weller eds., 2010), available at http://leraweb.org/sites/leraweb.org/files/publications/ Proceedings/Proceed2010.pdf (noting that the lack of effective insurance portability-COBRA eligibility is limited to 10% of workers and only 20% of those eligible actually use it-led to temporary gaps in coverage of nearly 30% of the working population over the course often years).
26. See At Risk: Pre-Existing Conditions Could Affect 1 in 2 Americans, HEALTHCARE.GOV., http://www.healthcare.gov/center/reports/preexisting.html (last visited Dec. 10, 2011).
27. See David Amsden, The Young Invincibles, N.Y. MAG., Apr. 2, 2007, available at http://nymag.com/news/features/29723/.
28. See id. (quoting the President of the Commonwealth Fund, who stated that "[t]he most common misperception [among uninsured young adults] is that⋯ [they] end up getting decent care without insurance" because even though an individual injured in an accident "won't be left in the street[,]" that individual may not receive "good rehab" after emergency treatment); see also Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd (2006) (amended 2011) (prohibiting hospitals from transferring patients to other facilities or denying certain emergency care on the basis of a patient's inability to pay). In 2008, uninsured patients in the United States accounted for 19 million emergency-room visits. NAT L CTR. FOR HEALTH STATISTICS, CTRS. FOR DISEASE CONTROL & PREVENTION, NATIONAL HOSPITAL AMBULATORY MEDICAL CARE SURVEY: 2008 EMERGENCY DEPARTMENT SUMMARY TABLES 6 tbl.6 (2008), available at http://www.cdc.gov/nchs/data/ahcd/nhamcs-emergency/ nhamcsed2008.pdf.
29. See Jack Hadley et al., Covering the Uninsured in 2008: Current Costs, Sources of Payment, and Incremental Costs, 27 HEALTH AFF. p, w403 (2008) (basing the cost of uncompensated care in 2008 on independent data from health care providers and government sources).
30. See Sheryl Gay Stolberg & David M. Herszenhorn, Obama Lays Out His Health Plan, N.Y. TIMES, Feb. 23, 2010, http://query.nytimes.com/gst/fullpage. html?res=9C06E0DB1F3BF930A15751C0A9669D8B63&pagewanted=all (describing the health care debate as a "bitterly divisive yearlong clash").
31. Wilson Huhn, Constitutionality of the Patient Protection and Affordable Care Act Under the Commerce Clause and the Necessary and Proper Clause, 32 J. LEGAL MED. 139, 139 (2011).
32. § 1513(a), 124 Stat. at 253-56 (to be codified at 26 U.S.C. § 4980H) (specifying penalties for noncompliance for firms employing more than fifty people). Some commentators have argued that the relative costs of coverage versus penalties might produce a loophole that could unravel employer-backed coverage. See Amy Monahan & Daniel Schwarcz, Will Employers Undermine Health Care Reform by Dumping Sick Employees?, 97 VA. L. REV. 125, 127 & n.5 (2011) (citing KENNETH S. ABRAHAM & DANIEL SCHWARCZ, ABRAHAM'S INSURANCE LAW AND REGULATION 32 (5th ed. Healthcare Supp. 2010)). Others have claimed this concern to be overstated.
33. See David A. Hyman, Response, P PACA in Theory and Practice: The Perils of Parallelism, 97 VA. L. REV. IN BRIEF 83, 104-05 (2011), http://www. virginialawreview.org/inbrief/2011/11/04/hyman.pdf.
34. § 2001(a)(1)(C), 124 Stat. at 271 (to be codified at 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII)) (amending section 1902(a)(10)(A)(i) of the Social Security Act). In 2011, the poverty guideline for a family of four was $22,350; 133% of this guideline was $29,726 for a family of four. The 2011 HHS Poverty Guidelines, U.S. DEP'T OF HEALTH & HUMAN SERVS. (Jan. 21, 2011), http://aspe.hhs.gov/poverty/11poverty.shtml.
35. See id. at 195-99; see also LIONEL MACEDO, WORLD BANK, THE ROLE OF THE UNDERWRITER IN INSURANCE 4 (2009), http://siteresources.worldbank.org/ EXTFINANCIALSECTOR/Resources/2828841242281415644/Role-of-Underwriter-Insurance. pdf ("Another important aspect that underwriters have to deal with while assessing an application is the asymmetric knowledge of the risk. Individuals will always know more than anyone else about the perils to which their own goods, businesses or health are exposed⋯.").
36. For a classic treatment demonstrating an inevitable insurance separation equilibrium, see Michael Rothschild & Joseph Stiglitz, Equilibrium in Competitive Insurance Markets: An Essay on the Economics of Imperfect Information, 90 Q.J. ECON. 629, 634-37 (1976). For an article discussing how distribution costs and stickiness, created by practical factors, such as employer-provided insurance and family coverage, allow for pooling, rather than separating, equilibria, see Allard, Cresta & Rochet, supra note 11.
37. See Press Release, U.S. Dep't of Justice, Justice Department Asks the Supreme Court To Review the Affordable Care Act (Sept. 28, 2011), available at http://blogs.usdoj.gov/blog/archives/1606 (announcing the Justice Department's decision to petition the Court for certiorari);
38. see also David G. Savage, Supreme Court Could Rule on Healthcare Law Early Next Year, L.A. TIMES, Sept. 26, 2011, http://www.latimes.com/news/ politics/la-pn-healthcare-scotus-20110926,0,675007.story ("The Justice Department announced it will forgo an appeal to the full U.S. 11th Circuit Court of Appeals in Atlanta. Such an appeal to the 11-member court could have taken months and delayed a final decision from the high court until at least 2013.").
39. Randy Barnett has voiced the strongest opposition to congressional commerce power to regulate inactivity. See Barnett, supra note 2, at 618-19. Several notable commentators have expressed agreement. See Jonathan Adler, What Does the Mandate Regulate?, SCOTUSBLOG (Aug. 10, 2011, 10:52 AM), http://www.scotusblog.com/2011/08/what-does-the-mandate-regulate/;
40. Robert A. Levy, PPACA's Mandate: Not Commerce, Not Interstate, Not Necessary, Not Proper, SCOTUSBLOG (Aug. 2, 2011, 11:48 AM), http://www. scotusblog.com/2011/08/ppaca%e2%80%99s-mandate-not-commerce-not-interstate-not- necessary-not-proper/;
41. Ilya Somin, Will the Supreme Court Give Congress an Unlimited Mandate for Mandates?, SCOTUSBLOG (Aug. 10, 2011, 2:44 PM), http://www.scotusblog.com/2011/ 08/will-the-supreme-court-give-congress-an-unlimited-mandate-for-mandates/. Other scholars reject the premise that the individual mandate regulates inactivity. See Hall, supra note 2, at 1829-38; Koppelman, supra note 2;
42. Abbe R. Gluck & Gillian Metzger, Just the Facts: Health Economics and Constitutional Doctrine, SCOTUSBLOG (Aug. 4, 2011, 9:37 AM), http://www.scotusblog.com/2011/08/just-the-facts-health-economics-and- constitutional-doctrine/.
43. For a related distinction between environmental and political externalities, see Todd J. Zywicki, Environmental Externalities and Political Externalities: The Political Economy of Environmental Regulation and Reform, 73 TUL. L. REV. 845 (1999).
44. See also Saul Levmore, Interstate Exploitation and Judicial Intervention, 69 VA. L. REV. 563, 570-75 (1983) (distinguishing policies through which states impermissibly exploit other states in commerce from regulatory regimes through which states permissibly interfere with commerce).
45. See Maxwell L. Stearns, A Beautiful Mend: A Game Theoretical Analysis of the Dormant Commerce Clause Doctrine, 45 WM. & MARY L. REV. 1, 11-15 (2003) (distinguishing rent-seeking laws from those affecting laws in other states).
46. See STEARNS & ZYWICKI, supra note 11, at 170-71 (explaining overreliance on the prisoners' dilemma game and introducing additional games important to the study of law and public policy); Richard H. McAdams, Beyond the Prisoners' Dilemma: Coordination, Game Theory, and Law, 82 S. CAL. L. REV. 209, 216 (2009) (noting "how scholars misdescribe and misapply the game," thereby indicating "excessive attention" to the prisoners' dilemma);
47. see also D. Daniel Sokol, Explaining the Importance of Public Choice for Law, 109 MICH. L. REV. 1029, 1037 (2011) (reviewing STEARNS & ZYWICKI, supra note 11) (explaining the importance of employing various games in analyzing law and public policy).
48. Rent refers to a return on land or other productive assets above opportunity cost. See Armen A. Alchian, Rent, in 4 THE NEW PALGRAVE: A DICTIONARY OF ECONOMICS 141, 141-42 (John Eatwell et al. eds., 1987). Approved waste-storage facilities confer rents as compared with other potential uses of allocated lands.
49. For a classic economics text structured around this theme, see ARMEN ALCHIAN & WILLIAM R. ALLEN, EXCHANGE & PRODUCTION: COMPETITION, COORDINATION, & CONTROL (3d. ed. 1983).
50. See Maxwell L. Stearns, A Private-Rights Standing Model To Promote Public-Regarding Behaviour by Government Owned Corporations, in FROM BUREAUCRACY TO BUSINESS ENTERPRISE: LEGAL AND POLICY ISSUES IN THE TRANSFORMATION OF GOVERNMENT SERVICES 121 (Michael J. Whincop ed., 2003) (exploring the limits of the entrepreneurial analogy to states as market actors).
51. See Dan T. Coenen, Business Subsidies and the Dormant Commerce Clause, 107 YALE L.J. 965, 984-96 (1998) (exploring the implications of differences in obtaining tax breaks versus subsidies).
52. In fact, the first major book treatment of game theory was published two years later. See JOHN VON NEUMANN & OSKAR MORGENSTERN, THEORY OF GAMES AND ECONOMIC BEHAVIOR (1944).
53. See generally Maxwell L. Stearns, The New Commerce Clause Doctrine in Game Theoretical Perspective, 60 VAND. L. REV. 1, 61-62 (2007) (applying prisoners' dilemma to wage and hour regulations).
54. For a general discussion of problems of incommensurability in law, see generally Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV. 779 (1994).
55. For an analysis of the breakdown of the opinions in Kassel, see STEARNS & ZYWICKI, supra note 11, at 438-42 (demonstrating the Kassel cycle), and Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219, 1256-57 (1994) (same).
56. The driving game can be presented: with two drivers at an incipient stage of automobiles; with two contiguous jurisdictions, for example, states or municipalities; or with contiguous nations. For a recent illustration involving conforming a right-of-way law to noncontiguous nations to reduce accident risks, see Give Way Rules to Change, NA T 'L BUS. REV. (Sept. 29, 2010), http://www.nbr.co.nz/article/give-way-rules-change-130699 (discussing New Zealand's reversal of outlier right-of-way law) (last visited Sept. 12, 2011) (New Zealand, sadly, last visited by Max Stearns in October 2010).
57. Another way to view this is by considering the game ex ante as a driving game, and ex post, after the opportunity for the state to exact a form of rent, as an alternative rent-seeking game. No group of states would agree ex ante to allow a single state to disrupt a coordinated regime after the fact. For related analyses describing analogous regulatory challenges as a holdout game in which a single state or group of states declines to contribute its fair share to a common public good among states, see Dan L. Burk, Federalism in Cyberspace, 28 CONN. L. REV. 1095, 1123-26 (1996)
58. and Richard A. Epstein, Exit Rights Under Federalism, 55 LAW & CONTEMP. PROBS. 147, 159-61 (Winter 1992). See also Stearns, supra note 72, at 130-33 (comparing the holdout game and the driving game in assessing Kassel and Bibb).
59. See Norman R. Williams, Why Congress May Not "Overrule" the Dormant Commerce Clause, 53 UCLA L. REV. 153, 176-88 (2005) (arguing that the Court should not be able to override limitations based on the dormant Commerce Clause).
60. While the latter might seem to be a null set, it is not. Imagine that each intends to surprise the other by showing up at the other's preferred activity. For a romantic literary illustration, see O. HENRY, The Gift of the Magi, in THE COMPLETE WORKS OF O. HENRY 7 (Doubleday, Page & Co. 1926) (1899).
61. See id. at 163-66; see also id. at 210-11 (Stevens, J., concurring in part and dissenting in part) (disagreeing with Justice O'Connor's interpretation of the historical significance of the transition); Erik M. Jensen & Jonathan L. Entin, Commandeering, the Tenth Amendment, and the Federal Requisition Power: New York v. United States Revisited, 15 CONST. COMMENT. 355 (1998) (critiquing Justice O'Connor's historical account).
62. See Louise Weinberg, Fear and Federalism, 23 OHIO N.U. L. REV. 1295, 1323 (1997) ("The actual limiting principle ⋯ in Lopez, is the weirdly circular proposition that there must be a limiting principle.").
63. Because United States v. Morrison, 529 U.S. 598 (2000), also implicates another game, we present that case in more detail infra section III.B.3. The Necessary and Proper Clause, U.S. CONST. art. I, § 8, cl. 18, only further bolsters our conclusion that congressional commerce power amply supports the ACA, including the controversial individual-mandate provision. Because our analysis is designed to demonstrate the nature of games that Congress can and cannot address using its Commerce Clause powers, based upon the distinction between political and economic externalities, we do not separately consider the Necessary and Proper Clause as an independent basis for sustaining the ACA against the pending constitutional challenges. For articles taking competing views on that question, compare Koppelman, supra note 2 (arguing that the clause justifies the individual mandate), with Gary Lawson & David B. Kopel, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, 121 YALE L.J. ONLINE 267 (2011), http://yalelawjournal.org/ images/pdfs/1025.pdf (presenting a restrictive construction of the clause in opposition to the individual mandate). As early as McCulloch v. Maryland, 17 U.S. 316 (4 Wheat.) (1819), which rejected a constitutional challenge to the Second Bank of the United States, Chief Justice John Marshall recognized that the Necessary and Proper Clause was included among Congress's delegated powers in Article I, Section 8 to convey to Congress a choice of means respecting the implementation of policy pursuant to the exercise of its delegated powers. Id. at 323-24. In United States v. Comstock, 130 S. Ct. 1949 (2010), Justice Breyer, writing for a majority, reaffirmed this broad reading by devising a five-part balancing test used to sustain a federal statute empowering the Department of Justice to authorize the continued detention of a violent sex offender determined to pose an ongoing societal threat. See id. at 1965. Breyer's analysis, which balanced the exercise of congressional power against the convicted criminal's due process rights, considered among other factors the narrow applicability of potential extended detentions. See id. By contrast, Justice Scalia, writing separately in Gonzales v. Raich, 545 U.S. 1 (2005), viewed the same clause from an opposite perspective. Whereas the Raich majority, in an opinion by Justice Stevens, sustained the application of the Controlled Substances Act to prevent any permissible use for marijuana as applied against the California Compassionate Use Act, which permitted medical marijuana on advice of a physician, id. at 1, 9, Scalia instead reached the same result based on the Necessary and Proper Clause in combination with the Commerce Clause. Id. at 34-35 (Scalia, J., concurring). Scalia reasoned that because growing marijuana neither substantially affects commerce nor is an obvious economic activity, the marijuana ban could only be sustained as a necessary and proper component of a broader federal regulatory scheme. Id. None of the cases pending before the Supreme Court present challenges to the ACA based on individual rights, and therefore, these cases do not implicate the concerns contained in Breyer's Comstock analysis, even in dictum. The remaining constructions treat the Necessary and Proper Clause as bolstering Congress's choice of means in implementing its delegated powers, which include, most notably, the Commerce Clause.
64. See, e.g., An Act To Regulate Elections in the State of Arkansas, 1891 Ark. Acts 32, 36 (precincts with more than one hundred voters required to have "persons of the white and colored races to cast their votes alternatively"); FLA. COMP. GEN. LAW S § 6625 (1927) (requiring railroad companies to provide "[s]eparate waiting rooms and ticket windows for white and negro passengers"); GA. CODE ANN. § 84-1603 (1935) (billiards room licenses could not be issued to white owners for a "billiard room to be used, frequented, or patronized by persons of the Negro race"); LA. GEN. STAT. § 9791 (1939) (requiring segregation of races at circuses and tent exhibitions); OKLA. STAT. tit. 74, § 351j (1937) (segregated boating, fishing, and bathing facilities). See generally GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY 575-77 (1944) (describing segregation in churches, theaters, restaurants, trains, streetcars, and buses);
65. C. VANN WOODWARD, THE STRANGE CAREER OF JIM CROW 97-102 (3d rev. ed. 1974) (describing "[t]he mushroom growth of discriminatory and segregation laws during the first two decades of [the twentieth] century").
66. "Nor any drop to drink." SAMUEL TAYLOR COLERIDGE, THE RIME OF THE ANCIENT MARINER
67. reprinted in THE RIME OF THE ANCIENT MARINER, CHRISTABEL, AND OTHER POEMS 52 (Julian W. Abernethy ed., Charles E. Merrill Co. 1907).
68. See State Policies in Brief: An Overview of Abortion Laws, GUTTMACHER INST. (Jan. 1, 2012), http://www.guttmacher.org/statecenter/spibs/spib-OAL.pdf (providing an overview of disparities in abortion laws among all relevant jurisdictions).
69. See Jon F. Merz et al., A Review of Abortion Policy: Legality, Medicaid Funding, and Parental Involvement, 1967-1994, 17 WOMEN'S RTS. L. REP. 1, 6-7 (1995).
70. Nicole Huberfeld, Conditional Spending and Compulsory Maternity, 2010 U. ILL. L. REV. 751, 771 (2010).
71. State Policies in Brief: State Funding of Abortion Under Medicaid, GUTTMACHER INST. (Jan. 1, 2012), http://www.guttmacher.org/statecenter/spibs/ spib-SFAM.pdf (listing states).
72. For a discussion of the financial dislocations that attempts to fund private abortions pose for low-income women, see STANLEY K. HENSHAW ET AL., GUTTMACHER INST., RESTRICTIONS ON MEDICAID FUNDING FOR ABORTIONS: A LITERATURE REVIEW 18-21 (June 2009), http://www.guttmacher.org/pubs/MedicaidLitReview.pdf.
73. Alaska, Hawaii, Iowa, Maine, Michigan, Minnesota, Vermont, West Virginia, and Wisconsin each abolished the death penalty before 1972. States With and Without the Death Penalty, DEATH PENALTY INFO. CTR., http://www. deathpenaltyinfo.org/states-and-without-death-penalty (last visited Jan. 17, 2011).
74. See Corinna Barrett Lain, Deciding Death, 57 DUKE L.J. 1, 8-24 (2007) (describing the impact of Furman and Gregg on state death-penalty schemes). The District of Columbia, Massachusetts, and New Jersey kept their death penalty statutes unchanged after Furman but eventually abolished the death penalty. See Gregg, 428 U.S. at 179 n.23 (listing states that adopted death penalty statutes post-Furman); DEATH PENALTY INFO. CTR., supra note 250.
75. Illinois, Massachusetts, New Jersey, New Mexico, New York, Rhode Island, and the District of Columbia abolished the death penalty after 1976. Id. New Jersey, New Mexico, and Illinois have abolished the death penalty legislatively. See Part I: History of the Death Penalty, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/part-i-history-death-penalty#reinst (last visited Jan. 17, 2011).
76. S. REP. NO. 103-138, at 48 & n.47. "According to the Anti-Defamation League of B'nai B'rith, only 10 States ⋯ now include gender bias in their hate crimes laws." Id. at 48 n.47 (citing STEVEN M. FREEMAN ET AL., ANTI-DEFAMATION LEAGUE OF B'NAI B'RITH, HAT E CRIMES STATUTES: A 1991 STATUS REPORT: INCLUDING ADL MODEL LEGISLATION (1991)).
77. In 1996, sixty-five percent of the public polled opposed same-sex marriage. David Masci, Public Opinion on Gay Marriage: Opponents Consistently Outnumber Supporters, THE PEW FORUM ON RELIGION & PUB. LIFE (July 9, 2009), http://pewforum.org/Gay-Marriage-and-Homosexuality/Public-Opinion-on-Gay- Marriage-Opponents-Consistently-Outnumber-Supporters.aspx#1.
78. Notably, Hawaii was not one of these states. While Baehr was on appeal, "sixty-nine percent of the citizens of Hawai'i voted to ratify what is now article I, section 23 of the Hawai'i Constitution: 'The legislature shall have the power to reserve marriage to opposite-sex couples.'" David Orgon Coolidge, The Hawai'i Marriage Amendment: Its Origins, Meaning and Fate, 22 U. HAW. L. REV. 19, 20 (2000) (quoting HAW. CONST. art. I, § 23).
79. D.C. CODE § 46-401(a) (Supp. 2011); N.H. REV. STAT. ANN. § 457:1 - a (LexisNexis Supp. 2010); N.Y. DOM. REL. LAW § 10 - a (McKinney Supp. 2012); VT. STAT. ANN. tit. 15, § 8 (2010); Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 482 (Conn. 2008); Varnum v. Brien, 763 N.W.2d 862, 907 (Iowa 2009); Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003); Nicole Neroulias, Washington Gay Marriage Debate Not Yes or No, but Both, REUTERS, Feb. 16, 2012, http://www.reuters.com/article/2012/02/16/us-usa- gaymarriage-washington-idUSTRE81F10T20120216. The Governor of Maryland signed the same-sex marriage bill on March 1, 2012, but "[t]he law doesn't take effect until 2013, and opponents have started the process to collect signatures for an attempt to repeal the measure in November." Annie Linskey, Same-sex Marriage Bill Is Signed into Law; Measure Is Expected to Have an Impact Beyond the State's Borders, BALT. SUN, Mar. 2, 2012, at A1.
80. See, e.g., CAL. FAM. CODE §§ 297-299.6 (Deering 2006 & Supp. 2011); ME. REV. STAT. tit. 22, § 2710 (Supp. 2010); NEV. REV. STAT. § 122A (2011); N.J. STAT. ANN. § 26:8A (West 2007); OR. REV. STAT. §§ 106.300-340 (2009); R.I. GEN. LAW S § 15-3.1 (Supp. 2011); WIS. STAT. § 770.001 (2009-2010). Delaware began to recognize same-sex civil unions on January 1, 2012, pursuant to the passing of Civil Union and Equality Act of 2011. 78 Del. Laws ch. 22. Civil unions became available in Hawaii on January 1, 2012, pursuant to the passing of Senate Bill 232, which is currently known as Act 1. 2011-1 Haw. Rev. Stat. Ann. Adv. Legis. Serv. 1 (LexisNexis). Illinois Senate Bill 1716 was passed in January 2011, and the Illinois Religious Freedom Protection and Civil Union Act came into effect on June 1, 2011. 2010 Ill. Legis. Serv. 4349 (West). As a consequence of DOMA's definitional provision, same-sex couples domiciled in permissive states cannot enjoy federal marital benefits, including those arising from joint tax returns, Social Security, the Family and Medical Leave Act, and Federal Employees Health Benefits and Group Life Insurance programs. Andrew Koppelman, Dumb and DOMA: Why the Defense of Marriage Act Is Unconstitutional, 83 IOWA L. REV. 1, 3-4 (1997).
81. Adam Nagourney, California Ban on Gay Unions Is Struck Down, N.Y. TIMES, Feb. 8, 2012, at A1.
82. On the first day of legal same-sex marriages in New York, 107 of the 659 couples that obtained marriage licenses in New York City were nonresidents. Michael Barbaro, After Long Wait, Same-Sex Couples Marry in New York, N.Y. TIMES, July 24, 2011, http://www.nytimes.com/2011/07/25/nyregion/after-long- wait-same-sex-couples-marry-in-new-york.html.
83. An Act Providing Access to Affordable, Quality, Accountable Health Care, 2006 Mass. Acts 77, available at http://www.malegislature.gov/Laws/SessionLaws/ Acts/2006/Chapter58.
84. THE HENRY J. KAISER FAMILY FOUND., HOW PRIVATE HEALTH COVERAGE WORKS: A PRIMER, 2008 UPDATE 6-7 (2008), http://www.kff.org/insurance/upload/7766.pdf;
85. see also Tom Baker & Jonathan Simon, Embracing Risk, in EMBRACING RISK: THE CHANGING CULTURE OF INSURANCE AND RESPONSIBILITY 1, 11-12 (Tom Baker & Jonathan Simon eds., 2002) (discussing risk and insurance).
86. BEN FURNAS & PETER HARBAGE, CTR. FOR AM. PROGRESS ACTION FUND, THE COST SHIFT FROM THE UNINSURED 1-2 (Mar. 24, 2009), http://www. americanprogressaction.org/issues/2009/03/pdf/cost-shift.pdf (finding an eight percent increase in the average premiums from cost shifting).
87. See Massachusetts-The Rankings, UNITED HEALTH FOUND., http://www.americashealthrankings.org/MA/1996 (last visited Jan. 18, 2012).
88. Gail R. Wilensky, The Massachusetts Experience: Can It Inform the National Debate?, HEALTHCARE FIN. MGMT., June 2009, at 32, 33; MASS. DIV. OF HEALTH CARE FIN. & POLICY, supra note 299, at 21 & fig.2.1.
89. KAISER COMM'N ON MEDICAID & THE UNINSURED, THE HENRY J. KAISER FAMILY FOUND., MASSACHUSETTS HEALTH CARE REFORM PLAN: AN UPDATE 1 (June 2007), http://www.kff.org/uninsured/upload/7494-02.pdf.
90. See, e.g., MASS. HEALTH CONNECTOR, HEALTH REFORM FACTS AND FIGURES, (2011), https://www.mahealthconnector.org/portal/binary/com.epicentric. contentmanagement.servlet.ContentDelivery Servlet/Health%2520Care%2520Reform/ Facts%2520and%2520Figures/Facts%2520and%2520Figures. pdf.
91. Adele M. Kirk, Riding the Bull: Experience with Individual Market Reform in Washington, Kentucky, and Massachusetts, 25 J. HEALTH POL. POL'Y & L. 133, 166 (2000) (noting that "none of the commercial insurers in the 1995 nongroup market [in Massachusetts] chose to offer reform policies, and have instead closed their books").
92. See ME. BUREAU OF INS., ME. DEP'T OF PROF'L & FIN. REGULATION, WHITE PAPER: MAINE'S INDIVIDUAL HEALTH INSURANCE MARKET 8 tbl.C (Jan. 22, 2001), http://www.maine.gov/pfr/legislative/documents/indiv-health-2001.pdf.
93. New York's insurance reform resulted in a higher-than-average increase in uninsured individuals. Mark A. Hall, An Evaluation of New York's Reform Law, 25 J. HEALTH POL. POL'Y & L. 71, 76-77 (2000).
94. In New Jersey and Vermont, insurance premiums multiplied exponentially as a result of reform. See Mark A. Hall, An Evaluation of Vermont's Reform Law, 25 J. HEALTH POL. POL'Y & L. 101, 115 (2000);
95. Alan C. Monheit et al., Community Rating and Sustainable Individual Health Insurance Markets in New Jersey, 23 HEALTH AFF. 167, 169-70 & exhibit 3 (2004).