"You can get health insurance." Associate Justice Samuel Alito, during the recent oral arguments at the Supreme Court in the Patients Protection and Affordable Care Act ("ACA") Case.
Maybe you can get health insurance. Others cannot get health insurance. Not because they do not want it. But because they cannot get it even though they need it.
There is a big difference.
A Constitution-size, Insurance Coverage -size difference.
During the course of the recent oral arguments at the Supreme Court over the constitutionality of the so-called Health-Insurance-purchasing-mandate of the ACA, a favorite, recurring topic of the Justices' questions was if the Federal Government can require people to purchase Health Insurance or be penalized with a monetary penalty if they do not, what else can the Federal Government require people to do if it can require that? And like unto it: What then are the boundaries of this power, what are the limits if any on it?
This past weekend, a business owner named Donna Dubinsky gave a complete answer to these questions with a compelling two-part test:
The government muffed its response. To me, the answer is obvious. There are two simple limiting conditions, both of which must be present: (1) it must be a service or product that everybody must have at some point in their lives and (2) the market for that service or product does not function, meaning that sellers turn away buyers. In other words, you need something, but you may not be able to buy it.
To phrase the two parts of this test in slightly different words, (1) people need it and (2) regardless of how much if anything they are willing to pay for it, they do not control whether they get it, someone else controls whether they get it or not.
Clearly the factor of someone else holding control over this situation involves a power which ought to be exercised only in Good Faith. The parties exercising such a power ought to be required to deal fairly with the people who need "it," whatever "it" is, including Health Insurance. The reluctance of many if any Courts to impose an actionable duty of Good Faith and Fair Dealing on the Insurance application process reflects the difficulty in relying on common law or even equitable solutions to the problem.
If statutory requirements like the ACA's requirements are not the answer, what is the answer when someone needs Health Insurance but cannot get it because of a decision made by someone else?
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