Missing the Boat on EMTALA

Timothy Sandefur recently attacked Professor Akhil Amar's position on the individual mandate. Amar wrote,

When uninsured Connecticut residents fall sick on holiday in California and get free emergency room services, California taxpayers, California hospitals and California insurance policyholders foot the bill. This is an interstate issue, and Congress has power to regulate it....

There is nothing improper in the means that Obamacare deploys. Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers' nickel when you have trouble breathing.

Sandefur complains,

Nor is Amar’s reference to emergency rooms relevant. Obamacare has nothing whatsoever to do with this. Emergency room free-riding is a problem,* but emergency rooms are paid for by tax dollars.

That, of course, is not accurate. While tax dollars may pay for part of that care, another part is passed on to paying patients (and their insurance companies) and another part goes unpaid or is classified as "charity care". If hospitals and doctors were fully funded under EMTALA, we wouldn't see hospitals close their emergency departments or choose not to open one for fear of being stuck with the cost of treating uninsured patients. Why would EMTALA, with its harsh penalties and potential for massive civil liability, be required if hospitals and doctors were fully compensated? And overloaded emergency rooms are in what one doctor calls "the fog of war", utilizing costly tests to make up for their lack of patient histories and lack of time to make detailed physical examinations and diagnoses.

Sandefur updated his post with an argument that suggests that we could overcome the problem of free riding at emergency rooms, if only we repeal EMTALA:

Emergency room free-riding is a problem that, like the Obamacare free-rider problem, is caused by federal law, which forces emergency rooms to treat all comers without regard to their ability to pay. But unlike with Obamacare, the emergency room free-rider problem is addressed by funding emergency rooms with tax dollars, not by any compelled purchases.

As previously stated, emergency rooms and doctors do not receive full compensation for care provided under EMTALA. Beyond that the argument that the problem lies not with the uninsured, but with a mandate that emergency rooms treat the uninsured, is a fair one for a libertarian to make. But let's be honest - EMTALA is not going to be repealed. There's not a whisper of movement in the Republican Party toward its repeal and the "good old days" when a pregnant woman or heart attack victim could die in an ambulance looking for a hospital that would open its doors to an uninsured patient. And for all the talk about mandates and penalties, as I've previously suggested, the severe penalties that can be imposed against an on-call E.R. physician who declines to treat an uninsured patient under EMTALA look like the individual mandate on steroids.

Sandefur's addendum then drifts away from EMTALA, concluding,

As Charles Lane observed a few days ago, “Single-payer -- and any reduction in liberty it might entail -- would be clearly authorized under Congress’s power to raise revenue and spend it on the general welfare (Article 1, Sec. 8).... [T]he threat to liberty, if any, comes not so much from the individual mandate itself, but from the other things Congress might do if it gets away with claiming authority for this measure under the commerce clause.”

The slippery slope. The same argument, of course, applies to Congress's power to regulate what Sandefur would concede to be economic activity - we've been having that debate since Wickard v Filburn. Also, that's a policy argument, not one premised upon legal precedent or the language of the Constitution.