Fire Engine Red

In which I shall make an unpopular argument | Movin Meat | 2.12.07

Is EMTALA unconstitutional?

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The Fifth Amendment to the US Constitution states, in part, “… nor shall private property be taken for public use, without just compensation.” The Fourteenth Amendment similarly reads, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” The argument to be made here is that EMTALA requires private citizens, largely physicians, to provide the fruits of their labor without compensation or due process, and as such represents an unconstitutional “taking” of private property.

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A very interesting discussion at Movin’ Meat, but I was most interested in a pervasive theme in Emergency Medicine, that EMTALA constitutes a taking of personal property. It follows that since the federal government is taking personal property it must be unconstitutional. Therefore, Q.E.D. EMTALA is unconstitutional.

Issue: Is EMTALA an unconstitutional taking?

There is no taking under the 5th Amendment, nor is there an issue of due process under the 14th Amendment. Because participation in the Medicare program is optional (albeit, it is the rare physician or hospital that can survive without participation). Technically, since Medicare is a federal program and the federal government is the chief actor, the 14th Amendment is inapplicable, because the 14th Amendment extends to the states the taking and due process protections of the 5th Amendment (which are protections against the federal government alone). No property is involved, because the patient is seeking services that can potentially be reimbursed from many sources—including a federal source, Medicare. Any property right arises only after services are rendered. EMTALA is a pre-condition for participation and payment by Medicare. Similarly, it is no taking because the patient can still be billed for services.

EMTALA is not an unconstitutional taking.

Issue: Is EMTALA a constitutional spending?

Under the Taxing and Spending clause, Congress can condition any spending with conditions that must be met to receive payment. Here Medicare conditions participation and payment with EMTALA compliance. It is no less Congress’s right, under the Taxing and Spending clause, to condition Medicare participation by the EMTALA pre-condition to all patients, regardless of ultimate payer status.

EMTALA is a constitutional use of Congress’s spending power.

The notion that EMTALA may be unconstitutional smells of a self-serving bias and just a tad convoluted:

Why fire engines are red?

• Because they’ve got 8 wheels and 4 people on them
• 8 + 4 = 12
• There are 12 inches in a foot
• One foot is a ruler
• There was a ruler named Queen Elizabeth
• A ship named Queen Elizabeth sails the seas
• In the seas are fish
• On the fish are fins
• The Fins fought the Russians
• And Russians are red.

And that’s why fire engines are red. Because they’re always rushin’