Fixing Obamacare: The Virtues of Choice, Competition and Deregulation

46 Pages Posted: 16 Jul 2008 Last revised: 30 Dec 2013

See all articles by Richard A. Epstein

Richard A. Epstein

New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School

David A. Hyman

Georgetown University Law Center

Date Written: December 15, 2013


After a tumultuous and extended legislative process, President Obama signed the Patient Protection and Affordable Care Act (“PPACA”) on March 23, 2010. PPACA was “sold” to the public with an explicit promise that it would not interfere with existing coverage arrangements. President Obama repeatedly claimed “If you like your health plan, you can keep it,” and “if you already have health insurance, the only thing that will change for you under [my] plan is the amount of money you will spend on premiums. That will be less.”

It is now more than three years since PPACA was enacted -- what lessons should we take from the first three years of PPACA? How likely is it that the government’s ponderous bureaucracy can keep the promises of President Obama? And, if government falters, as we think likely, what should the nation do instead? We sketch out our responses to each of these questions in this essay.

To summarize, PPACA is extraordinarily unlikely to lower health care costs, but it has significant potential to destabilize existing coverage markets. Our prediction is that neither of the two Obama promises will or could be kept, even were PPACA implemented more or less as written (which with each passing day seems increasingly unlikely). In our view, the problems that have already materialized in the first three years post-PPACA are merely precursors to greater difficulties to come – difficulties that virtually insure that PPACA will turn out to be an expensive and misguided failure, assuming that it survives at all.

PPACA’s fundamental design defect was to superimpose additional layers of regulation and subsidies on a system that was already top-heavy with both. These preexisting regulations and subsidies have already misaligned the incentives within the health care system. The next generation of rules will only compound the errors. In our view the right approach to these problems is to promptly initiate a program of systematic deregulation that will introduce the choice and competition that PPACA gives at best lip service to. The right sequencing of reform is critical. It is far cheaper to remove regulations and subsidies than to add them. Each of these maneuvers should work, as no regulatory scheme could do, to reduce cost and increase both access to care, and quality of health care. Then, and only then, is it prudent to consider further steps, such as additional regulations (to constrain costs) and subsidies (to increase access).

Keywords: health reform, Obamacare, deregulation

Suggested Citation

Epstein, Richard A. and Hyman, David A., Fixing Obamacare: The Virtues of Choice, Competition and Deregulation (December 15, 2013). 68 NYU Annual Survey of American Law 493-537 (2013), U of Chicago Law & Economics, Olin Working Paper No. 418, U Illinois Law & Economics Research Paper No. LE08-023, Available at SSRN: or

Richard A. Epstein

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
(212) 992-8858 (Phone)
(212) 995-4894 (Fax)


Stanford University - Hoover Institution on War, Revolution and Peace

Stanford, CA 94305-6010
United States

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9563 (Phone)
773-702-0730 (Fax)

David A. Hyman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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