perceptive scholars in this field, proclaim in their thorough and insightful
2002 article chronicling the history of EBHI and critically evaluating it.98
Because of its failings and the possibility of reforming our nation’s
healthcare system to assure adequate coverage for all without the
discriminatory practices of a free-market private insurance market, Hyman
and Hall reserve their “third cheer.” The Affordable Care Act affords a
solution to the main problems that EBHI evolved to address,99 and upon
successful implementation of the ACA’s insurance exchanges, should offer
the freedom of choice and the benefits of free-market competition that
EBHI was intended to deliver but never quite did. For this reason the third
cheer for EBHI may never come.100 To explore that possibility, the next
section considers how the ACA has changed the environment in which
EBHI exists and operates.101
III. HOW THE AFFORDABLE CARE ACT CHANGES THE GAME
The ACA’s approach to EBHI, like so many parts of the Act, is the
product of political compromise. In the debates preceding the ACA’s
passage, many UHC advocates and various stakeholders favored a national
healthcare system that was not employment-based.102 However, both
politically and practically it was not feasible to toss out the existing system
and replace it with something else.103 A “clean slate” approach simply was
not feasible; a large segment of the public had a strong commitment to the
existing EBHI system. For this reason, EBHI was retained as a foundational
element of the ACA, at least on an optional basis.104
97. Mark Hall, J. D., is Professor of Law at Wake Forest Univ. School of Law and
directs the University’s Center for Bioethics, Health & Society. See http://
98. Hyman and Hall, supra note 16, at 24.
99. Id. at 32.
100. Id. at 32-33.
101. Patricia C. Flynn, Health-Care Reform and ESI: Reconsidering the Relationship
Between Employment and Health Insurance, 115 BUS. & SOC’Y REV. 311, 313 (2010)
(discussing how EBHI began during World War II and how federal policies helped to
expand this coverage).
102. See, e.g., Ronald Bailey, Ending Employment-based Health Insurance Is a Good
Idea – But Do We Really Need a New Regressive Health Insurance Tax?, REASON (October
16, 2007), available at http://reason.com/archives/2007/10/16/ending-employment-based-
health-i. See also Ezekiel J. Emanuel, The Problem with Tax-Exempt Health Insurance, N. Y.
TIMES (October 10, 2008), http://campaignstops.blogs.nytimes.com/2008/10/10/the-problem-
103. See Hyman & Hall, supra note 16, at 35-38 (discussing problems that could occur
with reform and a shift away from EBHI).
104. See Angie Drobnic Holan, Obama Statements on Single-Payer Have Changed a
Bit, POLITIFACT (July 16, 2009, 3:39 PM), http://www.politifact.com/truth-o-meter/