How the supreme court doomed the ACA to failure the Roberts "tax" ruling undermines the new health care law.

Lambert, Thomas A.

Pundits, policy wonks, and law professors (including this author) were surprised by the U.S. Supreme Court's June 28, 2012 ruling on the constitutionality of the Patient Protection and Affordable Care Act (ACA). Most observers expected either a 5-4 vote striking down the ACA's so-called "individual mandate" as an overbroad attempt to regulate interstate commerce, or a 5-4 or 6-3 vote upholding the mandate as a valid exercise of Commerce Clause power. Instead, five justices, including Chief Justice John Roberts, agreed that a mandate to purchase health insurance from a private company would exceed Congress's authority under the Commerce Clause, but a different five-justice majority, again including the Chief Justice, read the statute not to impose a strict mandate to purchase health insurance, but instead to levy a constitutionally valid tax for failure to do so.

The Court also surprised observers by ruling 7-2 that the ACA unconstitutionally coerces the states by threatening to deny all federal Medicaid funding-not just expansion funding-to states that do not expand their Medicaid rolls as the statute prescribes. While prior Supreme Court precedents had recognized the theoretical possibility that Spending Clause legislation could unconstitutionally commandeer recipient states, no spending legislation had actually been struck down on coercion grounds. Few observers expected the state challengers to succeed on their coercion argument, particularly by a 7-2 vote.

Now that the dust has settled somewhat, we may assess the likely consequences of the decision in National Federation of Independent Business v. Sebelius. This article briefly summarizes the reasoning underlying the decision's individual mandate ruling. It then considers what lies ahead for health insurance and medical care in the United States if the ACA, as modified by NFIB, is not repealed. Be warned: the picture isn't pretty.

The Roberts Court's Decision

As both Justice Roberts' opinion for the Court and the joint dissent of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito emphasized, our federal government is one of limited powers. The Bill of Rights precludes the government from imposing rules and taking actions that violate certain fundamental rights like the freedoms of speech, association, and religion. In addition, Article I of the Constitution limits congressional power by exhaustively cataloging the things Congress is authorized to do; congressional action that is not authorized is forbidden. Accordingly, for an act of Congress to pass constitutional muster, it must be both authorized by the empowering provisions of Article I and not forbidden by the constraints in the Bill of Rights.

The primary issue in NFIB was whether the so-called individual mandate-the provision of the ACA requiring most individuals to purchase health insurance or pay a penalty to the government--was authorized by Article I. The government contended that the mandate was authorized by Congress's express power under the article's Section 8, Clause 3 to "regulate Commerce ... among the several States." The state challengers, by contrast, maintained that individuals who had elected not to purchase health insurance had not thereby engaged in commerce, so forcing them to do something commercial--to enter commerce--was not itself a regulation of commerce. Five members of the Court (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito) agreed and held that the Commerce Clause does not authorize Congress to order individuals to purchase insurance from a private company. They further agreed that the mandate was not authorized by the Article I provision empowering Congress to "make all Laws which shall be necessary and proper" for carrying out its Commerce Clause authority. The mandate was not "proper," the five justices concluded, because it would compel-not regulate--commerce, and any power conferred by the Necessary and Proper Clause must be incidental to, not greater than, the expressly enumerated powers.

[ILLUSTRATION OMITTED]

But all this was not enough to undermine the individual mandate's constitutionality. Having concluded that the mandate is not a valid exercise of Congress's authority under the Commerce and Necessary and Proper Clauses, Justice Roberts invoked a longstanding interpretive canon that calls for the Court, if possible, to interpret statutes in a way that preserves their constitutionality. Because he had determined that the mandate could not be upheld on the aforementioned grounds, Justice Roberts was willing to adopt what he characterized as a "fairly possible," though not the "most straightforward," reading of the ACA--namely, that the statute does not make it illegal not to buy health insurance, but instead merely imposes a tax, labeled a "penalty," on the failure to do so. Congress's calling the payment a penalty rather than a tax, Justice Roberts reasoned, was enough to preclude application of the Anti-Injunction Act, which limits courts' jurisdiction to hear challenges to tax laws but, as a mere statute, may be overridden by congressional action. But, according to the Chief Justice and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, congressional labeling alone is not enough to keep a penalty from amounting to a tax for constitutional purposes. The penalty for not buying insurance is constitutionally a tax, the majority reasoned, because it is relatively small in size, has no "scienter" requirement (i.e., does not require an intentional

failure to purchase insurance), and is to be collected by the Internal Revenue Service. Accordingly, the penalty for failure to purchase insurance is constitutionally authorized as long as it meets the Constitution's restrictions on Congress's taxing power. The majority concluded that it does.

Constitutional law scholars will spend years dissecting the reasoning and exploring the broad implications of NFIB's individual mandate ruling, and an exhaustive constitutional analysis of the decision is beyond the purview of this article. Instead, the remainder of this article focuses on the narrower and more immediate issue of how the modified ACA will alter health insurance and medical care in the United States.

Implications

In June 2009, at the outset of the health care reform debate, President Obama's Council of Economic Advisers identified "two key components of successful health care reform: (1) a genuine containment of the growth rate of health care costs, and (2) the expansion of insurance coverage." When the ACA was finally enacted, it became apparent that proponents had deemphasized the former component and focused almost exclusively on the latter. As interpreted and modified by the NFIB Court, however, the ACA is likely to provide neither. Instead, we can expect health insurance premiums to rise, the underlying cost of medical care--the primary driver of insurance premiums-to continue to grow at pre-ACA (or perhaps higher) rates, and insurance coverage to expand less than ACA proponents predicted.

Health insurance premiums | As the government repeatedly stressed in the NFIB argument, the individual mandate was necessary because of two constraints the ACA places on insurance companies. The first, "guaranteed issue," precludes insurance companies from denying or dropping coverage because of preexisting conditions. The second, "community rating," requires insurers to set premiums solely on the basis of age, smoker status, and geographic area, without charging higher premiums to sick people or those susceptible to sickness. Taken together, these two constraints on insurance pricing create a perverse incentive for young, healthy people to refrain from purchasing health insurance until they need medical care. After all, they can always obtain coverage immediately upon becoming ill or injured (thanks to guaranteed issue), and (thanks to community rating) the insurer is forbidden to charge them a higher price reflective of the virtual certainty that they will make large claims. The penalty-backed individual mandate was designed to prevent young, healthy people from dropping or declining to purchase insurance, thereby leaving only the older and infirm in the covered population.

If young, healthy people do exit the pool of premium-paying insureds, insurance premiums will skyrocket. That is because health insurance premiums are based on the likely health care expenditures of the covered population. The greater the percentage of young and healthy (low expenditure) individuals in the group, the lower the resulting premiums. Conversely, when the young and healthy drop out so that the pool of insureds is, on average, older and more infirm, premiums will rise. And, of course, the higher insurance premiums rise, the more sensible it becomes for the relatively healthy to drop their insurance, pay the small "tax," and wait to get sick before signing up for increasingly costly coverage. Efficacious penalties for failure to purchase insurance, then, are required to prevent "adverse selection" and ensure that insurance policies, as regulated by the ACA, remain affordable.

But penalties do not deter if they are set too low. Say, for example, that a parking meter costs a dollar, but the penalty for not feeding the meter is only a quarter. Who would feed the meter? Unless the expected penalty for an expired meter (the fine times the likelihood of detection) exceeds a dollar, feeding the meter is irrational.

The ACA creates a similar situation because the statutory penalty for not carrying health insurance is quite low, much lower than the cost of insurance. As Justice Roberts observed:

 [I]ndividuals making $35,000 a year are expected to owe the IRS
 about $60 for any month in which they do not have health insurance.
 Someone with an annual income of $100,000 a year would likely owe
 about $200. The price of a qualifying insurance policy is projected
 to be around $400 per month.

It makes little sense for a young, healthy person in this situation to pay $400 a month for health insurance when she can instead opt to pay a penalty of $60 a month until she needs health care, at which point she can contact a health insurer and be assured of coverage (because of guaranteed issue) at rates not reflecting her impaired health (because of community rating).

Now, this analysis does not account for subsidies the ACA provides to purchase health insurance. Families earning up to four times the federal poverty level (FPL) may qualify for a subsidy on health insurance purchased on a state exchange that complies with the ACA. But there are two reasons to believe that, even with these subsidies, many young and healthy people will refrain from purchasing health insurance. First, the subsidies are too small. For subsidy-eligible families of four (those earning up to 400 percent of FPL), the annual penalty for failure to purchase insurance will never exceed $2,085 (adjusted for inflation from 2016 dollars). Out-of-pocket costs for subsidized insurance, by contrast, will be significantly more than that amount for all but the poorest families. Table 1 catalogs, for different family-income levels, the maximum income percentage and out-of-pocket dollars the family will have to pay for subsidized insurance in 2016, the percentage difference in outlays for the family's two options (buy insurance or pay the penalty), and the family's likely decision.

As the table reveals, at all but the lowest income levels it makes more sense for healthy families to refrain from purchasing insurance and pay the penalty until insurance coverage is needed. In fact, until 2016, even families with the lowest two income levels on the table would be better off foregoing insurance purchases. Because the no-insurance penalties are phased in between 2014 and 2016 (they are only $285 in 2014 and $975 in 2015), they are initially less than the out-of-pocket cost of a qualifying insurance policy. It is likely, then, that even low-income healthy families will drop out of the insurance pool in 2014 and 2015, driving up insurance premiums for those remaining in the pool.

In addition to being too small, the subsidies for purchasing insurance may not be available in many states. The text of the ACA provides for the subsidies only on purchases made through exchanges that the states voluntarily establish. While proponents of the ACA presumably assumed that all states would establish such exchanges so as to make subsidies available to their citizens, a great many states (36 as of the time this article was drafted) either have declared an intention not to set up a state exchange or have made little movement in the direction of doing so. The IRS has taken the position that the subsidies should also be available through federal exchanges set up as a "fallback" in states that do not establish their own. It insists that expanding the subsidies is consistent with the purpose of the statute. That is not altogether clear, for legislative history suggests that Congress deliberately provided subsidies only through state-established exchanges in order to encourage states to set up and manage such exchanges. In any event, the statutory language limiting subsidies to state exchanges is quite clear and courts are generally loathe to exalt a statute's purported purpose over its clear text, particularly when congressional intent is ambiguous.

In the end, then, the ACA sets penalties that are too low to induce young and healthy people to purchase insurance, even when their purchases are subsidized as the statute provides. Proponents of the ACA, who certainly understood the perverse incentives created by mandating guaranteed issue and community rating, must have recognized that the penalties were too low to prevent widespread adverse selection. They likely assumed, though, that the deficient penalties for failure to carry insurance were a "bug" that Congress would eventually fix once the act was put in place and became operative. During debate over the ACA, proponents needed for the penalties to be low so that they could maneuver the statute through the political process; they figured they could fix the deficiencies later.

The NFIB decision, however, limits Congress's ability to increase the penalty for not carrying health insurance. The small size of the penalty was one of three factors that, according to Chief Justice Roberts, transformed the penalty into a tax for constitutional purposes. He explained:

 [T]he shared responsibility payment may for constitutional purposes
 be considered a tax, not a penalty: First, for most Americans the
 amount due will be far less than the price of insurance, and, by
 statute, it can never be more. It may often be a reasonable
 financial decision to make the payment rather than purchase
 insurance, unlike the "prohibitory" financial punishment in Drexel
 Furniture. Second, the individual mandate contains no scienter
 requirement. Third, the payment is collected solely by the IRS
 through the normal means of taxation-except that the Service is not
 allowed to use those means most suggestive of a punitive sanction,
 such as criminal prosecution.

This reasoning suggests that the penalty for failure to carry health insurance can count as a tax for constitutional purposes only if it is kept so small as to be largely ineffective. NFIB thus transformed what was effectively a "bug" in the ACA into a "feature" of the statute-one that is required for the act to constitute a valid exercise of congressional power. Absent the power to increase penalties substantially, the only means Congress has for inducing young, healthy people to buy insurance is to increase premium subsidies to bring out-of-pocket expenses into line with expected penalties. Given the nation's dire fiscal situation, the political will to take that tack may prove lacking. Somewhat ironically, then, the NFIB decision may have damned the ACA to failure in the process of saving it from constitutional challenge.

Underlying medical costs I The toxic combination of guaranteed issue, community rating, and constitutionally limited low penalties for failure to purchase health insurance would not doom the ACA if the act significantly reduced medical costs across the board. While adverse selection would generate a somewhat riskier pool of insureds, the reduced costs per claim might offset the increased number of claims per insured, driving total medical costs (and thus insurance premiums) downward. Unfortunately, the ACA does precious little to reduce the costs of medical care itself, as opposed to health insurance. In fact, it will likely cause underlying medical costs to rise.

The ACA's primary measures aimed at constraining the costs of medical care are:

* increased funding for ferreting out "waste, fraud, and abuse"

* price controls (administered by the Independent Payment Advisory Board, commonly known as IPAB) on Medicare charges

* comparative effectiveness research aimed at determining which medical procedures are most cost-effective

* measures to encourage preventive care

* authorization for "Accountable Care Organizations" (ACOs), which are collaborations among medical care providers who are offered a modest financial incentive to coordinate care so as to reduce redundancy, unnecessary testing, etc.

* an excise tax to discourage extremely generous employer-provided health care plans that lead consumers to ignore medical prices and overconsume health care services

Unfortunately, none of these measures will likely have much cost-reducing effect. An attempt to reduce waste, fraud, and abuse may be a cost-effective effort, but officials have been attempting to reduce waste, fraud, and abuse for decades and there is little reason to believe this particular attempt will be anomalously successful. IPAB recommendations will affect Medicare expenditures only, and will likely lead to either reduced services for Medicare beneficiaries or price discrimination against non-Medicare consumers of the services at issue, who will be charged higher prices to make up for the Medicare cuts. Comparative effectiveness research is probably a good initiative (information, after all, has characteristics of a public good and is thus frequently underproduced), but such research will reduce costs only if health care providers actually use it in making treatment decisions. Given that doctors tend to think their patients are unique and should not be confined to "off the rack" treatments, and insured patients have little or no incentive to pressure their physicians to follow the most cost-effective treatment regimens, it is difficult to believe that comparative effectiveness research will reduce overall health care costs by a significant percentage. The same goes for the ACA's preventive care efforts, which amount mainly to grants for demonstration projects, etc., or to mandates that insurers provide preventive measures free of charge. (For reasons detailed below, mandating insurance coverage for all preventive measures will likely increase the cost of those measures in the long run.) As for ACOs, any cost-savings from collaborations among competing providers must be reduced by the amount of price-enhancing collusion such collaborations facilitate. Given that the payoff for ACO members who successfully collude to raise prices would dwarf any likely "shared savings" from coordination, the coordination among competitors that the statute's ACO provisions encourage is more likely to increase than to reduce providers' prices. That leaves the excise tax for particularly-generous insurance policies. For reasons explained next, that tax is a good, but far too limited, initiative.

When it comes to the medical costs that underlie insurance premiums, the glaring omission in the ACA is its failure to address what is perhaps the primary driver of health care inflation: the lack of price competition among providers of medical services. In competitive markets, price is driven down to the level of the producer's incremental cost (which usually falls with technological development and increased specialization) as competing producers vie for customers. But producers will lower their prices only if doing so brings them more business, and lower prices will enhance sales only if customers (at least "marginal" customers-those most price-sensitive) actually shop on price. When a third party pays for the consumer's purchase, the consumer has little incentive to consider price when determining from whom to purchase. Thus, health insurance tends to make consumers price-insensitive, thereby destroying providers' incentive to compete on price.

As health insurance has transitioned from covering only unpredictable and catastrophic expenses (like emergency surgeries and unexpected hospitalizations) to covering even expected, low-cost services (like office visits and vaccinations), and as co-payments have been reduced or eliminated, consumers' incentives to take price into consideration when selecting medical service providers have virtually disappeared. It is not surprising, then, that a 2005 Harris Interactive Poll of 2,000 insured adults found that the average survey participant could predict the price of a Honda Accord within $300, but was off by a whopping $8,100 when it came to estimating the price of a four-day hospital stay. Why research prices (or refuse low-value services) when someone else is paying? And why would providers lower their prices (or refrain from recommending services of little value) when consumers routinely ignore price in making purchase decisions?

Things change drastically when consumers have to foot the direct bill for medical treatment. Consider, for example, the price of LASIK eye surgery, which insurance generally does not cover. In 1999, prices for the procedure averaged $2,106 per eye. By 2010, the average price in real (1999) dollars had fallen 21 percent, to $1,658 per eye, despite significant improvements in the technology. Similarly, prices for cosmetic surgery have consistently fallen over time despite both technology improvements and increased demand. In the three years preceding 2009, purchases of laser skin resurfacing increased by 456 percent among men and 215 percent among women, but prices fell even in nominal terms. Before this surge in demand, the average procedure cost $2,317; by 2010 it had declined to $2,232 in nominal dollars (an 18.5 percent decline in real terms). Prices for medical services overall, by contrast, have risen sharply over time. From 1999 to 2010, when LASIK prices fell 21 percent in real terms, real prices for medical services rose by 22 percent. What accounts for this difference in price trends? In large part, the vigorous price competition results from the fact that consumers of LASIK and cosmetic surgery take price into account because they must pay out of pocket.

The lesson for health care reformers is that if we want to stop the upward spiral of health care costs--the real source of America's purported health care crisis--we need to find ways to motivate providers to compete on price. Expanding insurance coverage does not help here; such expansion results in even less price comparison among consumers and tends to encourage providers to raise prices and to oversell unnecessary or marginally useful medical services.

A better policy would encourage consumers to pay directly (out of pocket) for a more significant portion of their health care consumption so that providers have an incentive to compete on value. Increasing deductibles and copayments, while encouraging consumers to prepare for higher out-of-pocket costs by maintaining tax-advantaged Health Savings Accounts, would help on this front. Current policy, though, discourages high-deductible, high-copayment insurance policies. Right now, employer contributions to health insurance, but not individuals' own expenditures on such insurance, are not taxed. This creates an incentive for employers to replace salary, upon which their employees are taxed, with more generous health insurance benefits (i.e., low deductibles, low copayments, lots of costly coverages), which are tax-advantaged. Those generous benefits, in turn, discourage both price competition and thoughtful decisions about health care consumption.

Proponents of the ACA understood this reasoning, as evidenced by the comment of Christina Romer (then-chair of President Obama's Council of Economic Advisers and an architect of the ACA) that overly generous insurance plans "lead families to be less vigilant consumers of health care." The act's excise tax on the most generous employer-provided plans is a step in the right direction. ACA proponents missed a crucial opportunity, though, in failing to correct the inequitable tax treatment that encourages employers to compensate their workers with more generous benefits rather than increased salary. Moreover, the act exacerbated the problem of anemic price competition by mandating that insurance plans fully cover, with no copayment, all preventive services. If consumers pay nothing for a preventive service regardless of its price, they have little incentive to select relatively cost-effective services, and providers therefore have little incentive to compete on price. Automobile insurers understand this principle. They do not raise premiums slightly and cover routine oil changes, even though regular oil changes prevent higher costs down the road, because they know that insurance coverage would destroy price competition among mechanics and drive up the price of oil changes. By the same token, the ACA's mandate that insurers fully cover all preventive health services is sure to increase the price of those services in the future.

Insurance coverage | As mentioned above, the ACA's framers chose to pursue increased insurance coverage over reduced medical costs. As implemented in light of NFIB, however, it is unlikely that the act will expand coverage as much as its proponents hoped and promised.

First, a number of stares, including some very populous ones, are likely not to expand Medicaid as the statute prescribes. Recall that one of the holdings of NFIB was that Congress could not cut off all federal Medicaid funding to states that did not expand their Medicaid rolls to cover all individuals and families earning up to 133 percent of FPL (because doing so would impermissibly "commandeer" the states). Instead, Congress could merely withhold federal expansion funding from noncompliant states. The "carrot" of expansion funding is far less significant than the "stick" of cutting off all federal Medicaid funding, and a number of governors--Democrats and Republicans alike-have expressed reservations about expanding their Medicaid rolls. Given the generous federal subsidies available to states that expand their rolls (100 percent of expansion funding initially, falling to 90 percent by 2020), most state governments will likely comply with the expansion request. After all, the federal taxes paid by a state's residents ultimately help finance the expansion funding, and resident voters are thus likely to demand some share of that funding. On the other hand, officials in many cash-strapped states have worried that Congress will, in the future, reduce the amount of federal subsidies for the expanded rolls, leaving the states on the hook for the expanded entitlement benefits. Those officials may decide not to expand their states' Medicaid rolls, leaving uninsured many citizens who are not eligible for traditional Medicaid. Those earning less than 133 percent of FPL would also not be eligible for premium subsidies, which are available only for individuals and families earning 133 percent to 400 percent of FPL.

Coverage levels may also disappoint because the ACA encourages employers to drop health plans for lower-income employees, many of whom will not be motivated to purchase insurance on their own. As noted, the federal tax code currently exempts employer-provided health insurance benefits from taxation. That exemption amounts to an implicit subsidy percentage equal to the payroll tax rate plus the recipient employee's marginal income tax rate. Because high-income workers are subject to higher marginal tax rates than are lower-income workers, this implicit subsidy is greatest for them. Moreover, workers earning more than 400 percent of FPL will get no subsidy to buy insurance if their employer stops providing it. Lower-income workers, by contrast, get less of an implicit subsidy for employer-provided health insurance, are eligible for more generous subsidies on state exchanges if their employer does not provide health insurance benefits, and would therefore prefer to work for employers that do not offer such benefits. Employers competing for workers will respond to these preferences.

Consider, for example, a previously uninsured 4S-year-old who earns $35,000 and wants to acquire a family insurance policy that, in a high-cost area, will cost around $15,000 in 2016. If the employer provides the policy, the cash component of the employee's compensation will fall to $20,000 (benefits generally being a dollar-for-dollar substitute for wages). The employee, however, will not have to pay the approximately $3,400 in federal income, Social Security, and Medicare taxes that would otherwise be due on the $15,000 received as insurance rather than cash. On the other hand, if the employer does not provide health insurance and the employee purchases it on a state exchange, the employee will be eligible for a federal subsidy worth around $13,600. Given the choice between a $3,400 implicit tax subsidy and a $13,600 subsidy on the exchange, the employee would prefer the latter. If the employer employs more than 50 workers and fails to provide coverage, then the employer would be charged a penalty of $2,000 for each worker (after the first 30 workers). It would likely choose to pay that penalty, however. The employer could finance the payment by reducing the employee's salary by $2,000, and the employee would gladly agree to that arrangement. Even after having his salary diminished by $2,000, the employee would be better off gaining access to the larger government subsidy available only to individuals without employer-provided coverage.

But this analysis shows merely that the ACA encourages employers to drop coverage for lower-income workers. Won't those workers then purchase subsidized policies on the state exchanges? Perhaps not. For many of those workers, it will make more sense to pay the penalty and wait until health care is needed before purchasing insurance. A one-income family of four headed by a 40-year-old earning $50,000, for example, would have to pay $3,385 for qualifying insurance or incur a no-insurance penalty of $2,085. And the family could always purchase insurance on a state exchange-with a $9,900 subsidy-the moment coverage became necessary. Such a family's income level is low enough that the family is better off without employer coverage, yet high enough that the family's out-of-pocket insurance expenses will exceed the no-insurance penalty. Families in this situation can be expected to both lose employer coverage and refrain from purchasing insurance On a state exchange.

Of course, all this assumes that premium subsidies are indeed available. For reasons set forth above, the ACA seems not to authorize such subsidies in states that fail to establish exchanges and instead rely on the federal government to do so. Employers in such states would have less incentive to drop coverage for low-income employees, but lower-income citizens who do not have employer-provided health insurance would not be likely to purchase insurance in such states, where the difference between the non-coverage penalty and the out-of-pocket cost of insurance (without subsidies) would be tremendous.

For all these reasons, the ACA, as constrained by NFIB, is unlikely to expand health insurance coverage to anywhere near the level its proponents predicted.

Conclusion

While the NFIB decision averted a constitutional ruling that would have eviscerated the constraints government faces as a result of the Constitution's enumeration of congressional powers, the decision left the ACA largely intact. The limitations it did impose, though, are likely to impair further the effectiveness of the already misguided statute. As modified and constrained by NFIB, the ACA is likely to drive up both the cost of health insurance premiums and the underlying cost of medical care without increasing insurance coverage by nearly as much as the act's proponents promised.

Of course, this grim picture of the future assumes that the ACA is not repealed or significantly amended. Given the act's continued unpopularity, repeal is a genuine possibility. Congress and the president would do well to replace this ill-conceived statute with a law focused primarily on the most fundamental problem plaguing the American medical system: the lack of vigorous price competition among health care providers. Correcting the tax code provisions that encourage overly generous health insurance policies and thereby assure that consumers of health care pay little or nothing out of pocket would be an excellent first step toward tackling the biggest problem facing the American health care system.

READINGS

* "How the Free Market Can Cure Health Care," by Matt Palumbo. American Thinker, December 17, 2011.

* "Punitive Damages: An Economic Analysis," by A. Mitchell Polinsky and Steven Shavell. Harvard Law Review, Vol. 111 (1998).

* "Taxation without Representation: The Illegal IRS Rule to Expand Tax Credits under the PPACA," by Jonathan Adler and Michael F. Cannon. Health Matrix: Journal of Law-Medicine, forthcoming.

* "The Proposed Accountable Care Organization Antitrust Guidance: A First Look," by Joe Miller. Health Affairs Blog, April 4, 2011.

* "The Real Trouble with the Birth Control Mandate," by John H. Cochrane. Wall Street Journal, February 9, 2012.

* "Why States Have a Huge Financial Incentive to Opt Out of Obamacare's Medicaid Expansion," by Avik Roy. Apothecary, July 13, 2012.

* "Yes, the Federal Exchange Can Offer Premium Tax Credits," by Timothy S. Jost. Health Reform Watch, September 11, 2011.

THOMAS A. LAMBERT is the Judge C.A. Leedy Professor of Law at the University of Missouri Law School.

TABLE 1

Penalty vs. Insurance Decision for Different Incomes
For 2016 and beyond

Family Maximum per- Dollars to Insurance Likely
Income cent of income be spent on cost as decision
 to be spent on insurance percent of
 insurance penalty

$35,000 3.97% $1,388 67% Buy
$40,000 4.96% $1,982 95% Buy
$45,000 5.94% $2,672 128% Don't buy
$50,000 6.77% $3,385 162% Don't buy
$55,000 7.52% $4,135 198% Don't buy
$60,000 8.23% $4,937 236% Don't buy
$65,000 8.85% $5,751 276% Don't buy
$70,000 9.47% $6,626 318% Don't buy
$75,000 9.50% $7,125 342% Don't buy
$80,000 9.50% $7,600 365% Don't buy
$85,000 9.50% $8,075 387% Don't buy
$90,000 9.50% $8,550 410% Don't buy
$95,000 No maximum Full cost 400+% Don't buy
$100,000 No maximum Full cost 400+% Don't buy