June 15 2011
The Individual Mandate: ObamaCare's Weakest Link
Americans love a good court room drama. John Grisham's books have sold billions of copies, and this summer the cable TV line-up boasts several series about high-stakes court battles. Yet there's another real life legal drama that merits more attention.
Several appeals courts are considering constitutional challenges to the Patient Protection and Affordable Care Act this summer, and many of these challenges could be renamed Limits of the Commerce Clause v. Individual Mandate. This battle is bound for the Supreme Court one way or another, and the Court will rule... one way or another.
Legal scholars can debate just how far Article I, Section 8, Clause 3 (better known as the "Commerce Clause") can be stretched. But Americans should recognize that regardless of its constitutionality, the ACA is a tremendous government power grab, which will forever change the relationship between citizens and the state.
Section 5000A of the Affordable Care Act, also know as the "Minimum Essential" requirement mandates the vast majority of Americans obtain health insurance coverage or pay a penalty.
Proponents argue that this mandate helps people make a smart decision. Even young, healthy people run the risk of serious injury, hospitalization, or diagnosis with an uncommon ailment that could cost them thousands of dollars in treatment. It's in their interest to be insured. Moreover, they argue, when people fail to make the prudent decision of getting insurance on their own, the rest of society has to pick up the tab when the uninsured get sick and can't afford treatment.
But where do we draw the line in this kind logic? There are plenty of opportunities for Americans to make bad decisions that hurt themselves and create potential costs for society: Start smoking, gamble away all your money, drop out of high school, plan poorly for a new child... Yes, in aggregate, these bad decisions could also be said to have a big effect on government spending, and definitely a "significant effect on interstate commerce," which is the justification for the individual mandate for health insurance.
Fortunately, Americans generally understand and appreciate the inherent value of the freedom to make individualized decisions, even if we don't agree with others' choices. They know that allowing government to make our decisions "for our own good" or "for the good of the economy as a whole" is a profound violation of the idea of a limited government.
Not surprisingly, the individual mandate in the ACA is the most unpopular part of the law. A poll from Kaiser Family Foundation indicates that 67 percent of Americans want to repeal the individual mandate, and only 27 percent of people want to keep it in place.
But that's ObamaCare's big problem: The law hinges on this mandate. "Guaranteed issue" laws, which require insurance companies to provide coverage, even if the applicant is already ill, would undoubtedly encourage opportunistic behavior in the insurance market without a mechanism to force people to pay into the pool before they get sick. The individual mandate is meant to keep insurance premiums low by forcing all of the healthy to subsidize the sick. If the individual mandate is ruled unconstitutional and void, the rest of the law won't work without it.
That's not a reason to support twisting the Constitution to allow this tremendous expansion of government power to force people to buy a certain product: The entire new law should be scraped since there are far better ways to address the current flaws in our health care system, and to help those truly in need of assistance, without creating a trillion dollar new government program.
Americans should pay attention to the drama unfolding about the future of this new health care law. There is more than just our health care system at stake, but the entire concept of a government with defined, limited powers.
A lack of creative problem-solving skills led our lawmakers to violate our Constitution. Now, they are summoning up as many creative excuses as they can find to defend this law in court - and to the American people.
Hadley Heath is a senior policy analyst at the Independent Women's Forum, which runs http://healthcarelawsuits.org, a Web site providing all the latest information about the legal challenges to ObamaCare.