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110 Mich. L. Rev. First Impressions 1 (2011)

handle is hein.journals/mlro110 and id is 1 raw text is: 










       WHY IT'S CALLED THE AFFORDABLE
                             CARE ACT

                             Nicholas Bagley*
                           Jill R. Horwitz** t


    The Patient Protection and Affordable Care Act of 2010 (ACA) raises
numerous policy and legal issues, but none have attracted as much attention
from lawyers as Section 1501. This provision, titled Maintenance of Mini-
mum Essential Coverage, but better known as the individual mandate'
requires most Americans to obtain health insurance for themselves and their
dependents by 2014.1 We are dismayed that the narrow issue of the mandate
and the narrower issue of free riding have garnered so much attention when
our nation's health-care system suffers from countless problems. By im-
proving quality, controlling costs, and extending coverage to the uninsured,
the ACA means to address many of those problems. And it's about time. The
United States has lower insurance coverage rates and lower life expectancy
than most developed countries, and our system does poorly on several di-
mensions of quality. Worse still, we spend much more on health care than
any other country-$2.5 trillion, or 17.6 percent of gross domestic product,
in 2009.2 These measures of total spending mask grave distributional con-
cerns: 52 million people went without insurance during some part of 2010.'
    Nonetheless, the individual mandate is the legal hook upon which many
have hung their constitutional challenges to the ACA. In a recent essay, our
colleague Professor Douglas Kahn joins with Professor Jeffrey Kahn to take
issue with one of several justifications for the mandate: that it solves the
free-rider problem that arises when an uninsured individual receives care
without paying for it, thus forcing providers to raise costs for paying

     t  Suggested citation: Nicholas Bagley and Jill R. Horwitz, Commentary, Why It's
Called the Affordable Care Act, 110 MICH. L. REV. FIRST IMPRESSIONS 1 (2011),
http://www.michiganlawreview.org/assets/fi/110/bagleyhorwitz.pdf.
     *  Assistant Professor of Law, University of Michigan Law School.
     ** Professor of Law, University of Michigan Law School. The authors thank David
Cutler, Kristina Daugirdas, Jeffrey Kahn, Julian Mortenson, Edward Parson, and especially
Doug Kahn.
     1. Patient Protection and Affordable Care Act, Pub. Law No. 111-148, 124 Stat. 119
(2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. Law
No. 111-152, 124 Stat. 1029 (2010) (amending §5000A of the Internal Revenue Code of
1986) [hereinafter ACA].
     2. National Health Expenditures 2009 Highlights, CENTERS FOR MEDICAID & MEDI-
CARE SERVICES, www.cms.gov/NationalHealthExpendData/downloads/highlights.pdf (last
visited Aug. 4, 2011).
     3. Help  on  the Horizon, THE   COMMONWEALTH    FUND, at ix (2011),
www.commonwealthfund.org/Content/Surveys/201 1/Mar/2010-Biennial-Health-Insurance-
Survey.aspx (report accessible through hyperlink).

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