Professor Brewbaker's thoughtful article on physician price controls raises many issues, large and small. Some – such as the relative merits of the regulatory takings standard and the fair return standard – have been dealt with in my principal article and I will not revisit them here. I will instead address four arguments advanced by Professor Brewbaker that are not anticipated in my article: (1) that the Constitution should not apply to physician price controls because physicians can fend for themselves in the political process; (2) that applying the Takings Clause to physician price controls would be tantamount to reviving the "economic liberty" doctrine of Lochner v. New York; (3) that in assessing the effect of physician price controls one must consider the offsetting benefits physicians have received from other government action; and (4) that physicians (and hospitals) can make various "defensive maneuvers," primarily in the form of reducing the quality of patient care, that obviate the financial effect of price controls.
Although this Reply will offer a number of observations about these contentions, one theme stands out overall. Each of the criticisms leveled by Professor Brewbaker, even if valid, could also be made about the Supreme Court's decisions applying the Takings Clause to public utility ratemaking, or indeed to the most routine applications of the Takings Clause to exercises of the power of eminent domain. In effect, Professor Brewbaker's real quarrel is not with my conclusion that the Takings Clause imposes constitutional limits on physician price controls. Rather, it is with the Takings Clause itself, as that Clause has come to be understood by courts through decades of interpretation. Thus, however interesting many of his points may be as a theoretical matter, they are unlikely to commend themselves to courts – or more importantly to legislators – who are asked to apply the Takings Clause to proposals for universal price controls on physician services.
Constitutional Law | Law
Thomas W. Merrill,
Reply to Professor Brewbaker,
Hastings Const. L. Q.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3679