1 See, e.g., Abraham, Kenneth, Four Conceptions of Insurance, 161 U. Pa. L. Rev. 653 (2013).Google Scholar

2 See Nat'l Fed'n of Indep. Bus. (NFIB) v. Sebelius, 132 S. Ct. 2566 (2012); Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011); Florida v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011).

3 See Abraham, supra note 1, at 683-97.

4 See, e.g., KENNETH S. ABRAHAM, DISTRIBUTING RISK: INSURANCE, LEGAL THEORY, AND PUBLIC POLICY 3, 57-58 (1986); Ben-Shahar, Omri & Logue, Kyle D., Outsourcing Regulation: How Insurance Reduces Moral Hazard, 111 Mich. L. Rev. 197, 205 (2012).Google Scholar

5 See RAND CORP., THE HEALTH INS. EXPERIMENT 3-4 (2006), http://www.rand.org/content/dam/rand/pubs/research_briefs/2006/RAND_RB9174.pdf; JONATHAN GRUBER, KAISER FAMILY FOUNDATION, THE ROLE OF CONSUMER COPAYMENTS FOR HEALTH CARE: LESSONS FROM THE RAND HEALTH INSURANCE EXPERIMENT AND BEYOND 8 (2006), http://kff.org/health-costs/report/the-role-of-consumer-copayments-for-health/.

6 See Ben-Shahar & Logue, supra note 4, at 199-200; Dulleck, Uwe et al., The Economics of Credence Goods: An Experiment on the Role of Liability, Verifiability, Reputation and Competition, 101 Am. Econ. Rev. 526, 550 (2011).CrossRefGoogle Scholar

7 See infra Part II.C for full consideration of the difference between the terms “self -insured” and “uninsured.”

8 See, e.g., Ben-Shahar & Logue, supra note 4, at 201; Moncrieff, Abigail R., Obamacare's (3) Day(s) in Court, 141 Chest J. 1389, 1390-91 (2012).CrossRefGoogle ScholarPubMed

9 The regulatory vision of insurance was missing not only from the Administration's legal defense of the statute in the NFIB v. Sebeliuslitigation but also from the Administration's political defense of the statute both before and after Obamacare's passage. See, e.g., President Barack Obama, Remarks by the President on the Affordable Care Act and the New Patients’ Bill of Rights (June 22, 2010), available at http://www.whitehouse.gov/the-press-office/remarks-president-affordable-care-act-and-new-patients-bill-rights.

10 Patient Protection and Affordable Care Act of 2010 (ACA), Pub. L. No. 111-148, § 1(a), 124 Stat. 119 (2010).

11 See infra Part III.C.

12 See Moncrieff, supra note 8, at 1390.

13 See id.

14 See id.

15 See id.

16 See id.

17 See generally M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”).

18 545 U.S. 1 (2005).

19 See, e.g., Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Darby Lumber Co., 312 U.S. 100 (1941).

20 See Raich, 545 U.S. at 37 (Scalia, J., concurring) (noting that the “relevant question [under the Necessary and Proper Clause] is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power” (citing Darby, 312 U.S. at 121)).

21 See NFIB v. Sebelius, 132 S. Ct. 2566, 2588-89 (2012) (Roberts, C.J.); id. at 2650 (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).

22 See id. at 2586 (Roberts, C.J.) (“Legislative novelty is not necessarily fatal; there is a first time for everything. But sometimes ‘the most telling indication of [a] severe constitutional problem … is the lack of historical precedent’ for Congress's action.” (quoting Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3159 (2010))).

23 See NFIB, 132 S. Ct. at 2587 (Roberts, C.J.) (“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”); id. at 2644 (Scalia, Kennedy, Thomas, & Alito.JJ., dissenting) (“To be sure, purchasinginsurance is ‘ Commerce’; but one does not regulate commerce that does not exist by compelling its existence.”).

24 See, e.g., id. at 2590 (Roberts, C.J.) (arguing that “most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care … .”); id. at 2647-50 (Scalia, Kennedy, Thomas, & Alito, JJ., dissenting).

25 See Reply Brief for Petitioners (Minimum Coverage Provision) at 35-36, Dep't of Health & Human Servs. v. Florida, 132 S. Ct. 2566 (2012) (No. 11-398); Brief for Petitioners (Minimum Coverage Provision) at 37-39, Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011) (No. 11-398).

26 See Reply Brief for Petitioners (Minimum Coverage Provision), supra note 25, at 35-36.

27 See Brief for Petitioners (Minimum Coverage Provision), supra note 25, at 37-39.

28 See generallyBrief for Petitioners (Minimum Coverage Provision), supra note 25, at 3; Reply Brief for Petitioners (Minimum Coverage Provision), supra note 25, at 5.

29 See Ben-Shahar & Logue, supra note 4, at 201. As Ben-Shahar and Logue acknowledge, the notion that insurance regulates in ways that are similar to government is far from novel. Id. at 200. Legal and economics scholars have discussed the regulatory role and the regulatory potential of private insurance for decades. See, e.g., ABRAHAM, supra note 4, at 10, 18. There have also been recent calls for private health insurance to play an even greater regulatory role for healthcare and medical safety. See Ronen Avraham, Private Regulation, 34 HARV. J.L. & PUB. POL’Y 543, 554-91 (2011).

30 See infra Parts II.B.1-II.B.2; Ben-Shahar & Logue, supra note 4, at 220-25.

31 See Weinstein, Neil D., Reducing Unrealistic Optimism About Illness Susceptibility, 2 Health Psychol. 11, 11–12 (1983);CrossRefGoogle Scholar Weinstein, Neil D. & Klein, William M., Resistance of Personal Risk Perceptions to Debiasing Interventions, 14 Health Psychol. 132, 132 (1995).CrossRefGoogle ScholarPubMed

32 See ELLIOT ARONSON ET AL., SOCIAL PSYCHOLOGY 150 (7th ed. 2010).

33 See A Prairie Home Companion with Garrison Keillor: The News from Lake Wobegon, AM. PUB. MEDIA (Aug. 28, 2010), https://itunes.apple.com/podcast/apm-prairie-home-companions/id215352157?mt=2.

34 See, e.g., DeJoy, David M., The Optimism Bias and Traffic Accident Risk Perception, 21 Accident Analysis & Prevention 333, 335-37 (1989).CrossRefGoogle ScholarPubMed

35 Weinstein & Klein, supra note 31, at 138-39.

36 See News Release, Nat’l Inst. of Child Health and Human Dev., Many Obese Youth Have Condition that Precedes Type 2 Diabetes: Studies to Address Obesity-Linked Diabetes in Children (Mar. 13, 2002), available at http://www.nichd.nih.gov/news/releases/obese.cfm.

37 See Klein, Cynthia T.F. & Helweg-Larsen, Marie, Perceived Control and the Optimistic Bias: A Meta-Analytic Review, 17 Psychol. & Health 437, 437-38 (2002).CrossRefGoogle Scholar

38 See Tali Sharot, The Optimism Bias, TIME, May 28, 2011, at 1-2, available at http://content.time.com/time/health/article/0,8599,2074067,00.html.

39 See, e.g., Benzion, Uri et al., Discount Rates Inferred from Decisions: An Experimental Study, 35 Mgmt. Sci. 270, 270 (1989);CrossRefGoogle Scholar Fishburn, Peter & Rubinstein, Ariel, Time Preference, 23 Int’L Econ. Rev. 677, 678 (1982);Google Scholar Laibson, David, Golden Eggs and Hyperbolic Discounting, 112 Q.J. Econ. 443, 443-45 (1997).CrossRefGoogle Scholar

40 Laibson, supra note 39, at 445-46.

41 See Dulleck, Uwe & Kerschbamer, Rudolf, On Doctors, Mechanics, and Computer Specialists: The Economics of Credence Goods, 44 J. Econ. Literature 5 (2006).CrossRefGoogle Scholar

42 Id. at 41.

43 Id. at 7.

44 See Phillips, Peter W.B. & Isaac, Grant, GMO Labeling: Threat or Opportunity?, 1 J. Agrobiotechnology Mgmt. & Econ. 25, 26 (1998).Google Scholar

45 See Dulleck & Kerschbamer, supra note 41, at 47.

46 See 42 U.S.C. § 5000A (Supp. IV 2010) (requiring individuals to carry “minimum essential coverage” and, inter alia, defining the kinds of health insurance plans that satisfy this requirement).

47 See Konrad, Walecia, Preventing Sickness, with Plenty of Red Tape, N.Y. TIMES, Sep. 19, 2011,Google Scholar http://www.nytimes.com/2011/09/20/health/policy/20consumer.html?_r=0.

48 Before Obamacare, many insurance policies charged a small copay, usually fifteen dollars or twenty dollars, for office visits like checkups. Under Obamacare, insurance may not charge a copay for any preventive care visits. See What are My Preventative Care Benefits, HEALTHCARE.GOV, https://www.healthcare.gov/what-are-my-preventive-care-benefits (last visited Sept. 16, 2013).

49 See FastStats: Life Expectancy, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/nchs/fastats/lifexpec.htm (last updated May 30, 2013).

50 See Jason P. Schachter & Jeffrey J. Kuenzi, Seasonality of Moves and the Duration and Tenure of Residence: 1996, U.S. CENSUS BUREAU (DEC. 2002), http://www.census.gov/population/www/documentation/twps0069/twps0069.html; Average Length of U.S. Vehicle Ownership Hit an All-Time High, KELLEY BLUE BOOK (Feb. 23, 2012), http://www.kbb.com/car-news/all-the-latest/average-length-of-us-vehicle-ownership-hit-an-all_time-high/.

51 These figures are relevant only to cars and homes that are used for business purposes, and they include high-use vehicles like rental cars and taxis and high-occupancy rental properties lik.apartment buildings. The figures are therefore lower than they would be if they included owner-used cars and owner-occupied homes. SeeINTERNAL REVENUE SERV., DEP't OF THE TREASURY, PUBL’N 946, HOW TO DEPRECIATE PROPERTY 62 (2013), http://www.irs.gov/pub/irs-pdf/p946.pdf.

52 Id. at 104.

53 Id. at 40-41 (giving residential rental properties a 27.5-year useful life under one system of depreciation but a forty-year useful life under a different system of depreciation).

54 State Vaccination Requirements, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/vaccines/vac-gen/laws/state-reqs.htm (last modified Sept. 30, 2011).

55 23 U.S.C. § 402 (2012).

56 Home Buyers: Home Inspection Information, NAT’L ASS’N OF HOME INSPECTORS http://www.nahi.org/consumers/home-buyers (last visited Sept. 16, 2013).

57 Businessperson's Guide to Federal Warranty Law, BUREAU OF CONSUMER PROT. BUS. CTR. (Dec. 2006), http://business.ftc.gov/documents/bus01-businesspersons-guide-federal-warranty-lawunderstanding.

58 See Uwe E. Reinhardt, Is ‘Community Rating’ in Health Insurance Fair?, ECONOMIX (Jan. 1, 2010, 7:01 AM), http://economix.blogs.nytimes.com/2010/01/01/is-community-rating-in-health-insurance-fair/?_r=1.

59 Id.

60 Id.

61 See Korobkin, Russell B., The Battle Over Self-Insured Health Plans, or “One Good Loophole Deserves Another,” 1 Yale J. Health Pol’Y L. & Ethics 89, 92 (2005).Google Scholar

62 One might object to this view on the ground that the money is not actually being invested for the future but rather is being immediately spent on the healthcare needs of the currently old. The system is admittedly one of immediate cross-subsidization rather than standard financial investment. But there is no meaningful difference in this context between quotidian investment and cross-subsidization; by supporting and maintaining an insurance system of cross-subsidization (by “investing” in the colloquial sense in a strong private insurance system), the currently young ensure that they will have access to dramatically discounted healthcare when they are old. Indeed, the colloquial investment in a cross-subsidizing insurance system may be more secure than a stock market investment to pay for future healthcare directly.

63 Alemayehu, Berhanu & Warner, Kenneth E., The Lifetime Distribution of Health Care Costs, 39 Health Servs. Res. 627, 636-38 (2004).Google ScholarPubMed

64 These statistics may suffer a bit from the presence and operation of Medicare. It is possible that individuals could consume less medical care after age sixty-five than they currently do but that the generosity of Medicare creates a moral hazard that partially explains the statistical jump in spending at the Medicare age. Even looking at statistics from forty-year-olds, though, most of whom are not yet Medicare-eligible, it is clear that healthcare spending increases with age faster than income does. From age twenty to forty, healthcare spending increases 1.7 times and income increases only 1.3 times. Compare id. withU.S. CENSUS BUREAU, HISTORICAL INCOME TABLES: PEOPLE, http://www.census.gov/hhes/www/income/data/historical/people/ (last visited Aug. 31, 2013).

65 Alemayehu & Warner, supra note 63, at 636-38.

66 SeeU.S. CENSUS BUREAU, supra note 64.

67 Id.

68 Id.

69 See DeJoy, supra note 34, at 333. To my knowledge, there has never been a similar finding of optimism bias in home repairs.

70 There is no regulatory obligation to hold homeowners insurance, but most banks and lending institutions require mortgage holders to maintain such insurance until the loan is repaid.

71 See Shamit Choksey, Car Insurance Requirements by State, CARS.COM (June 26, 2013), http://www.cars.com/go/advice/Story.jsp?section=ins&subject=ins_req&story=state-insurance-requirements.

72 See generally SOC. SEC. ADMIN, SSA PUBL’N NO. 05–10084, SOC. SEC. SURVIVOR BENEFITS (2012), available at http://www.ssa.gov/pubs/10084.html.

73 Medicaid covers long-term care for many elderly patients. See Bernstein, Nina, With Medicaid, Long-Term Care of Elderly Looms as a Rising Cost, N.Y. TIMES, Sept. 6, 2012Google Scholar, http://www.nytimes.com/2012/09/07/health/policy/long-term-care-looms-as-rising-medicaid-cost.html?pagewanted=all&_r=0.

74 Medicare Part A is obligatory for all Americans over age 65 and covers all hospitalization costs. See What does Medicare cover (Parts A, B, C and D)?, MEDICAREINTERACTIVE.ORG, http://www.medicareinteractive.org/page2.php?topic=counselor&page=script&slide_id=214 (last visited Sept. 22, 2013).

75 Medicare Parts B, C, and D are optional and require additional (but highly discounted) premiums. They provide coverage for outpatient (i.e. non-hospitalized) care and for prescription drugs. Id.

76 See generallyMichael Bihari, Medical Necessity, ABOUT.COM HEALTH INS., http://healthinsurance.about.com/od/healthinsurancetermsm/g/medical_necessity_definition.htm (last updated Aug. 5, 2013); How to Treat an MCL Injury, THE KNEE.COM, http://www.theknee.com/mcl-medial-collateral-ligament/how-to-treat-an-mcl-injury/ (last visited Sept. 21, 2013).

77 Bihari, supra note 76.

78 Id.

79 See NAT’L ASS’N OF INS. COMM’RS, Auto Insurance FAQs, INSURE U ONLINE, http://www.insureuonline.org/consumer_auto_faqs.htm (last visited Sep. 16, 2013).

80 See id.

81 This is why credence goods are often characterized by price inflation. Consumers attempt to judge quality by price, and providers respond by raising their prices to signify quality.

82 See generally Moncrieff, Abigail R., The Supreme Court's Assault on Litigation: Why (and How) It Could Be Good for Health Law, 90 B.U. L. Rev. 2323, 2359-60 (2010).Google Scholar

83 The orthopedist in this example is also legally prohibited from taking a “kickback” for referring a patient to a particular physical therapist. SeeAnti-Kickback Statute, 42 U.S.C. § 1320a-7b (2006).

84 See Knee Sprain, DRUGS.COM, http://www.drugs.com/health-guide/knee-sprain.html (last visited Sept. 21, 2013).

85 See Jonathan Cluett, Treatment of MCL Tears, ABOUT.COM ORTHOPEDICS, http://orthopedics.about.com/od/kneeligamentinjuries/p/MCL-Treatment.htm (last updated May 15, 2012).

86 See Snigdha Prakash & Vikki Valentine, Timeline: the Rise and Fall of Vioxx, NAT’L PUB. RADIO (Nov. 10, 2007, 2:40 PM), http://www.npr.org/templates/story/story.php?storyId=5470430.

87 See Informed Consent, AM. MED. ASS’N, http://www.ama-assn.org//ama/pub/physician-resources/legal-topics/patient-physician-relationship-topics/informed-consent.page (last visited Sept. 22, 2013).

88 See generallyFRANK H. KNIGHT, RISK, UNCERTAINTY, AND PROFIT (1971) (distinguishing between risk and uncertainty).

89 See Medical Licensure, AM. MED. ASS’N, http://www.ama-assn.org/ama/pub/education-careers/becoming-physician/medical-licensure.page (last visited Sept. 23, 2013).

90 See Medical Liability/Medical Malpractice Laws, NAT’L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/issues-research/banking/medical-liability-medical-malpractice-laws.aspx (last updated Aug. 15, 2011).

91 See United States v. Rutherford, 442 U.S. 544, 552 (1979) (finding there is no exception for interstate shipment of unapproved pharmaceuticals under the Food, Drug, and Cosmetic Act).

92 See Informed Consent, supra note 87.

93 See Google Search for “axle boot replacement,” GOOGLE, https://www.google.com/#q=axle+boot+replacement (last visited Sept. 27, 2013).

94 See, e.g., Cluett, supra note 85 (“Surgery for MCL tears is controversial … . Most surgeons agree that for patients who complain of persistent knee instability, despite appropriate nonsurgical treatment, surgery is reasonable.”).

95 Compare Reply Brief for Petitioners (Minimum Coverage Provision), supra note 25, at 6 (“No one is inactive when deciding how to pay for health care, as self-insurance and private insurance ar.two forms of action for addressing the same risk … .” (quoting Thomas More Law Ctr. v. Obama, 651 F.3d at 529, 561 (6th Cir. 2011) (Sutton, J., concurring))) with NFIB v. Sebelius, 132 S. Ct. 2566, 2590 (2012) (Roberts, C.J.) (“The individual mandate's regulation of the uninsured as a class is, in fact, particularly divorced from any link to existing commercial activity.”).

96 See NFIB, 132 S. Ct. at 2610 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part); Brief for Respondents (Severability) at 33, NFIB v. Sebelius, 132 S. Ct. 2566 (Nos. 11-393, 11- 400); Reply Brief for Respondents (Severability) at 11, NFIB v. Sebelius, 132 S. Ct. 2566 (Nos. 11-393, 11-400).

97 Brief for Abigail Moncrieff et al. as Amici Curiae Supporting Petitioners, at 20-21, NFIB v. Sebelius, 132 S. Ct. 2566 (2012) (No. 11-398), available at http://ssrn.com/abstract=2070625 [hereinafter PPC Brief].

98 See 42 U.S.C. § 18091(2)(E) (Supp. IV 2010) (Congress made this point explicitly in its findings, noting that “[t]he economy loses up to 207 [billion] a year because of the poorer health and shorter lifespan of the uninsured” and that near-universal coverage “will significantly reduce this economic cost.”).

99 Cf. NFIB, 132 S. Ct. at 2585 (Roberts, C.J.); Id. at 2645 (Scalia, J., dissenting).

100 NFIB, 132 S. Ct. at 2613 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part); Reply Brief for Respondents (Severability), supra note 96, at 8-9.

101 545 U.S. 1, 1-2 (2005).

102 See PPC Brief, supra note 97, at 4.

103 See NFIB, 132 S. Ct. at 2593 (Scalia, J., dissenting); Transcript of Oral Argument at 7-8, Dep't of Health & Human Servs. v. Florida, 132 S. Ct. 2566 (2012) (No. 11-398).

104 See Transcript of Oral Argument, supra note 103, at 13, 18, 77.

105 See Wickard v. Filburn, 377 U.S. 111 (1942).

106 Raich, 545 U.S. at 17 (citing Perez v. United States, 402 U.S. 146 (1971)); United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995); Wickard, 377 U.S. 111.

107 See Raich, 545 U.S. 1, 2 (Commerce Clause alone); id. at 34 (Scalia, J., concurring) (Commerce Clause in conjunction with Necessary and Proper Clause).

108 See Florida ex rel.Att’y Gen. v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1263-64 (11th Cir. 2011) aff’d in part, rev’d in part sub nom. NFIB, 132 S. Ct. 2566; Reply Brief for Petitioners (Minimum Coverage Provision), supra note 25, at 16-17.

109 See PPC Brief, supra note 97 (Together with five excellent coauthors, including four students, I presented this argument in full in an NFIB amicus brief.).

110 April Fulton, 46 Million Uninsured: A Look Behind the Number, NAT’L PUB. RADIO (Apr. 21, 2009, 12:36 PM), http://www.npr.org/templates/story/story.php?storyId=111651742.

111 See NFIB, 132 S. Ct. at 2611 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part); Reply Brief for Petitioners (Minimum Coverage Provision), supra note 25, at 2.

112 See Raich, 545 U.S. at 43 (O’Connor, J., dissenting).

113 See Memorandum in Support of Defendant's Motion for Summary Judgment, Florida v. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2010) (No. 3:10-CV-91-RV/EMT), 2010 WL 4564357.

114 See RAND CORP., supra note 5, at 3-4.

115 See 42 U.S.C. § 18091(2)(E) (Supp. IV 2010).

116 See Raich, 545 U.S. at 9 (holding that applying the provisions of the Controlled Substances Act to intrastate marijuana production is a permissible exercise of Congress's power under the Commerce Clause); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 528 (1985) (holding that the minimum wage provisions of the Fair Labor Standards Act applied to the transit authority's employees); United States v. Rutherford, 442 U.S. 544, 544 (1979) (finding there is no exception for interstate shipment of unapproved pharmaceuticals under the Food, Drug, and Cosmetic Act); Perez v. United States, 402 U.S. 146, 146 (1971) (holding that Congress's power under the Commerce Clause includes the ability to regulate local extortionate credit transactions); United States v. Darby, 312 U.S. 100, 113 (1941) (holding Congress had power under the Commerce Clause to regulate employment conditions including wages).

117 See Raich, 545 U.S. at 4-5.

118 See id. at 53 (O’Connor, J., dissenting) (noting, without questioning the broader constitutionality of the Controlled Substances Act (CSA), that “[t]here is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable [sic], let alone substantial, impact on the national illicit drug marketor otherwise to threaten the CSA regime”); id. at 59 (Thomas, J., dissenting) (“On this traditional understanding of ‘commerce,’ the Controlled Substances Act (CSA) … regulates a great deal of marijuana trafficking that is interstate and commercial in character.”).

119 Id. at 49 (O’Connor, J., dissenting).

120 See supra Part II.C for a discussion of and differentiation among the terms “self-insured,” “uninsured,” and “underinsured.” I use “self-insured” quite intentionally, not to align myself with proponents of the law, but to use the term that most accurately captures the problem of individual decisions to forgo comprehensive insurance coverage.

121 See Raich, 545 U.S. at 37 (Scalia, J., concurring) (noting that the “relevant question [under the Necessary and Proper Clause] is simply whether the means chosen are ‘reasonably adapted’ to the attainment of a legitimate end under the commerce power” (citing United States v. Darby, 312 U.S. 100 (1941)); Sabri v. United States, 541 U.S. 600, 605 (2004); M‘Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”).

122 See Ben-Shahar & Logue, supra note 4, at 205.

123 See Raich, 545 U.S. at 22 (defining the standard of review as “rational basis”).

124 See 42 U.S.C. § 18091(2)(E) (Supp. IV 2010).

125 The trend of consumer-directed health plans, such as Health Savings Accounts and high deductible health plans, began in 2003. There was early evidence that those with consumer-directed plans spent less on healthcare than those with comprehensive insurance, but some or even most of those savings might have come from under-consumption of preventive care, which could result inincreased spending later in life. See generallyMelinda Buntin et al., Consumer-Directed Health Care: Early Evidence About Effects on Cost and Quality, 25 HEALTH AFF. w516, w516 (2006) (finding that costs decreased among those with consumer-directed plans but that the data on quality of care and quality of consumption decisions were mixed); Haviland, Amelia M. et al., Growth of Consumer-Directed Health Plans to One-Half of All Employer-Sponsored Insurance Could Save 57 Billion Annually, 31 Health Aff. 1009, 1013 (2012)CrossRefGoogle ScholarPubMed (finding that patients with consumer-directed health plans spend less money but that a nontrivial amount of the savings arises from patients’ avoidance of recommended care like preventive care).

126 See NFIB v. Sebelius, 132 S. Ct. 2566, 2573 (2012) (holding the Commerce Clause does not empower Congress to command individuals to purchase insurance); id. at 2586 (determining legislative novelty is not in it of itself fatal); id. at 2591 (Roberts, C.J.) (noting the Government's response to the concern that upholding the individual mandate would allow Congress to require individuals to purchase broccoli).

127 See id. at 2593 (Roberts, C.J.) (determining that the individual mandate cannot be upheld under the Commerce Clause); id. at 2586 (holding legislative novelty is not in and of itself fatal, but a lack of historical precedent may be a telling indicator of a serious constitutional problem); id. at 2588 (fearing that the “Government's logic would justify a mandatory purchase to solve almost any problem”).

128 For an argument that it is not, see Benjamin, Stuart Minor, Bootstrapping, 75 L. & Contemp. Probs. 115 (2012).Google Scholar

129 See NFIB, 132 S. Ct. at 2589; Florida v. U.S. Dep't of Health & Human Servs., 648 F.3d 1235, 1285 (11th Cir. 2011), rev’d in part, aff’d in part sub nom. NFIB, 132 S. Ct. at 2566; Florida v. U.S. Dep't of Health & Human Servs., 780 F. Supp. 2d 1256, 1286 (N.D. Fla. 2011), rev’d in part, aff’d in part Florida, 648 F.3d 1235, rev’d in part, aff’d in part sub nom. NFIB, 132 S. Ct. at 2566; Transcript of Oral Argument, supra note 103, at 108-09.

130 See NFIB, 132 S. Ct. at 2590 (Roberts, C.J.).

131 See id. at 2625 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).

132 See Einer Elhauge, If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?, NEW REPUBLIC (Apr. 13, 2012), http://www.tnr.com/article/politics/102620/individual-mandate-history-affordable-care-act [hereinafter Elhauge, Unconstitutional Mandates]; Einer Elhauge, A Response to Critics on the Founding Fathers and Health Insurance Mandates, NEW REPUBLIC (Apr. 19, 2012), http://www.tnr.com/article/politics/102739/individual-mandates-history-maritime-law [hereinafter Elhauge, Response to Critics].

133 Elhauge, Unconstitutional Mandates, supra note 132; Elhauge, Response to Critics, supra note 132.

134 Elhauge, Unconstitutional Mandates, supra note 132; Elhauge, Response to Critics, supra note 132.

135 See NFIB, 132 S. Ct. at 2587 (Roberts, C.J.); id. at 2647-48 (Scalia, J., joined by Kennedy, Thomas, & Alito, J.J.); Transcript of Oral Argument, supra note 103, at 17.

136 See Derek Thompson, The Tiny Distinction that Saved Obamacare: Why the Penalty is a Tax, ATLANTIC (June 28, 2012, 2:58 PM), http://www.theatlantic.com/business/archive/2012/06/the-tiny-distinction-that-saved-obamacare-why-the-penalty-is-a-tax/259140/.

137 See NFIB, 132 S. Ct. at 2594 (Roberts, C.J.); Cooter, Robert D. & Siegel, Neil S., Not the Power to Destroy: An Effects Theory of the Tax Power, 98 Va. L. Rev. 1195, 1252 (2012).Google Scholar

138 See supra Part III.A.

139 NFIB, 132 S. Ct. at 2587 (Roberts, C.J.), 2647-48 (Scalia, J., joined by Kennedy, Thomas, & Alito, J.J.); Transcript of Oral Argument, supra note 103, at 11-13; see generally Somin, Ilya, A Mandate for Mandates: Is the Individual Health Insurance Mandate Case a Slippery Slope?, 75 L. & Contemp. Probs. 75, 75–76 (2012).Google Scholar

140 NFIB, 132 S. Ct. at 2619-20 (Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part); Somin, supra note 139, at 85-86.

141 See Schauer, Frederick, Slippery Slopes, 99 Harv. L. Rev. 361, 381-83 (1985-1986).CrossRefGoogle Scholar

142 See id. at 378-81; ANDREW KOPPELMAN, THE TOUGH LUCK CONSTITUTION AND THE ASSAULT ON HEALTH CARE REFORM 99-100, 165 n.3 (2013).

143 See Transcript of Oral Argument, supra note 103, at 5-9.

144 See id.; Reply Brief for Respondents (Severability), supra note 96, at 9-10.

145 Cf. Transcript of Oral Argument, supra note 103, at 6, 16.

146 See generallyUnited States v. Morrison, 529 U.S. 598, 614-19 (2000).

147 Marko, Robert, Note, Road Closed: The Inequitable Treatment of Pre-Closing Products Liability Claimants Under the Auto Industry Bailout, 4 Brook. J. Corp. Fin. & Com. L. 353, 354 (2010).Google Scholar

148 See NFIB v. Sebelius, 132 S. Ct. 2566, 2573 (2012).

149 See Transcript of Oral Argument, supra note 103, at 102-14; Jonathan Cohn, The Sleeper Argument Before the Court, NEW REPUBLIC (June 20, 2012), http://www.newrepublic.com/blog/plank/104176/supreme-court-obamacare-tax-precedent-revenue-balkin#; Mormann, Felix & Reicher, Dan, How to Make Renewable Energy Competitive, N.Y. TIMES, June 1, 2012,Google Scholar http://www.nytimes.com/2012/06/02/opinion/how-to-make-renewable-energy-competitive.html?pagewanted=all.

150 See NFIB, 132 S. Ct. at 2573; Gonzalez v. Raich, 545 U.S. 1, 19 n.29 (2005).

151 SeeTranscript of Oral Argument, supra note 103, at 7-9.

152 See id. at 17-18.

153 See id. at 42.

154 SeeUnited States v. Morrison, 529 U.S. 598, 614-19 (2000).

155 NFIB, 132 S. Ct. at 2566.

156 See Bailey v. Drexel Furniture Co., 290 U.S. 20, 40-43 (1922).

157 See Gruber, Jonathan, The Economics of Tobacco Regulation, 21 Health Aff. 146, 152-55 (2002).CrossRefGoogle ScholarPubMed

158 42 U.S.C. § 18091(2)(D) (Supp. IV 2010).

159 U.S. CONST. amend. VIII; see generally Wilkerson v. Utah, 99 U.S. 130, 134-35 (1878).