A final thought in this “Obamacare-at-the-Court” week: Does the Emergency Medical Treatment and Active Labor Act (EMTALA) make something like Obamacare’s mandate not only inevitable but legitimate? Enacted in 1986, EMTALA requires hospitals to provide care to anyone needing emergency treatment regardless of citizenship, legal status, or ability to pay. It’s often cited as the very reason we have to have Obamacare’s individual mandate, to cover the costs of providing for the uninsured indigent. As the Washington Post editorialized this morning, “If you end up in the emergency room, you will be cared for, as federal law demands. The government, already deeply involved in regulating the health-care market, has a legitimate interest in encouraging you to prepare for such an eventuality.”

Fair enough, but it must do so by constitutional means, and that’s just the problem here. Not every means that would solve a problem is authorized by our Constitution for limited government. In truth, however, the constitutional problem begins with EMTALA itself: neither the taxing nor the commerce power, if understood as the pre-New Deal Court understood it, authorizes Congress to compel hospitals to be Good Samaritans. In a free society, health care is no different than any other product or service: If you need or want it, you pay for it, failing which you don’t get it.

But the Constitution aside, that’s not how, “as a society,” we decided to go about things in 1986. (See here for a better way to serve the indigent.) We imposed the burden of providing such services on hospitals, which in turn shifted the costs mainly to those of us who do pay for the services we receive. To that complex system of “private” socialization Obamacare would add yet another layer of even more complex “public” socialization, the individual mandate being only one element in the mix. Needless to say, under neither arrangement is efficiency or the wise use of resources the goal.

So let’s go back to EMTALA and the Good Samaritan to see if there might be a better way. Traditional Anglo-American law has never compelled anyone to come to the aid of another unrelated person. We’re free to be Good Samaritans—that’s virtuous—but we don’t have to be. If we do aid another, however, we cannot then turn around and charge that person for the “service” we provided, however much it might be “decent” in turn for that person to compensate us for our troubles and losses. But here, we as a society are compelling hospitals to be “Good Samaritans.” In other words, we, not the hospitals, are the “virtuous” ones. Well if that’s the case, then we can’t really ask the hospitals to bear the costs of “our” virtue; nor, for the same reason, is it proper for the hospitals to shift the costs to only those who already pay for their services. Rather, if we, “as a society,” want to be virtuous in this way, then we, as a whole society, should bear the costs.

Much as with the Fifth Amendment’s Takings Clause, if we want lovely views or wildlife habitat that can be had only by restricting the property rights of certain private owners, we should be prepared to bear, as a society, the losses those owners suffer in the value of their property, which we can do by taxing ourselves—on budget—and compensating those owners accordingly. Here too, if we don’t want indigent people turned away at the emergency room door, then we have to be prepared to compensate the hospitals for the losses they incur as a result. At the least, “we” can then monitor those costs directly to determine whether we’re getting our money’s worth and, if not, address that through the political system, at least in principle, which is not possible now under our complex cost-shifting arrangements.

In fact, the way it’s done now is massively inefficient. Not that providing for indigent care through general taxation would be a model of efficiency either, as compared, in all likelihood, to private charity; but at least it would more equitably distribute the costs, and it would surely be more efficient than the inscrutable arrangements Obamacare would impose on our already far too complex health care payment system.

Interestingly, evidence for a more efficient (and equitable) system was put forward by no less than the judges in the 11^th Circuit whose decision found its way to the Supreme Court this week. For it turns out that the uninsured cost-shifting problem—the basic rationale for Obamacare—has been vastly overstated. In 2008, the court reported, the uninsured paid on average 46 percent of their healthcare costs. Third parties paid another 26 percent of those costs. That’s 72 percent. In fact, what we’re talking about here amounts to a paltry 1.7 percent of our total healthcare expenditures. To address that, Obamacare would federalize the entire health care system. If we’re not prepared to leave that small amount to charity—the best solution—far better would it be to pick up the tab “as a society,” through taxes, and leave the rest of us free to buy health care like we buy any other product or service, in the market, whether with or without insurance, as we wish. Why throw all of us in the common pot when a far simpler solution is readily at hand? Only those who love power could think otherwise.