The Affordable Care Act, one of President Obama’s signature legislative achievements, is headed to the U.S. Supreme Court. And it’s about time. The constitutionality of the law’s provision mandating Americans to purchase healthcare coverage or face a penalty is highly suspect. Can the government force Americans to buy something?
On September 28, the Court decided to place the case on its agenda for this session due to appeals filed by the Obama administration and twenty-six states. Previous rulings have turned in mixed results as to the law’s constitutionality. One ruling upheld the law, while another struck down the health care coverage mandate as unconstitutional. Another ruling stated that it was too early to challenge the law and the mandate, which does not go into effect until 2014.
The law’s constitutionality has been questioned ever since its passage in March 2010, as it should be.
One argument for the law’s individual mandate is that it’s similar to car insurance. If you own a car, the government can mandate that you purchase car insurance to be able to register and drive the car. But, it is not a requirement that people be able to drive a car. So, such a mandate does not cover the entire population. The mandate only covers those who desire to drive, a discretionary activity.
Health insurance is extraordinarily different from car insurance. Everyone in the country is alive, so a law forcing people to buy health care coverage would apply to the entire population.
The previous defenses to the law have centered on the “Commerce Clause.” The Obama administration will argue that the federal government has the right to “regulate interstate commerce.”
According to Jon Healey, a writer for the Los Angeles Times, the Supreme Court has ruled in the past that health care is “a form of interstate commerce that Congress can regulate.” So, the argument goes, by implementing a measure obligating Americans to purchase coverage, Congress is just changing how health care is paid for since every individual needs health care at some point.
This defense is not clear as to the limit of Congress’s power to compel Americans to buy, well, anything. Could the Congress use its power under the Commerce Clause to force Americans to eat three servings of fruits and vegetables a day, as Senator Tom Coburn (R-OK) asked now-Justice Elena Kagan during her confirmation hearings?
If Congress is allowed to mandate people to buy health insurance, then we do not know where Congress’ power over Americans ceases.
In the Eleventh Circuit case, which was won by the opposition, the government argued that health care coverage was “unique,” justifying a mandate to purchase the coverage.
In the opinion, the judges write that if Congress could mandate Americans to purchase health insurance, “a future Congress similarly would be able to articulate a unique problem requiring a legislative fix that entailed compelling Americans to purchase a certain product from a private company.” This, the judges argued, grants more power to Congress than the Founding Fathers envisioned.
The mandate to purchase coverage is the most likely part of the law to be found unconstitutional by the Supreme Court. But, the mandate is not the only negative aspect of the legislation. Writing in the Wall Street Journal, Dan Danner mentions the new “health insurance fee” that taxes “insurance companies based on their market share.” The problem with the tax: it is paid by small business and individuals who do not have “self-insured plans,” like corporations and labor unions.
There are also many other new requirements in the law that expand the insurance pool and, naturally, cause a rise in premiums. These include measures that seem positive, such as eliminating insurance companies’ denial of coverage due to preexisting conditions and allowing young adults to stay on their parents’ health plans until age twenty-six.
This increase in the cost of having insurance will likely force many Americans to change their coverage, resulting in less actual coverage in the end. If this happens, the legislation gives more people coverage, but less of it.
If the Supreme Court rules the mandate in the Patient Protection and Affordable Care Act (also known as “Obamacare”) unconstitutional, the Court will have to determine whether the mandate to buy insurance is so essential to the law that the whole act is unconstitutional, or if the law can exist without the mandate. The entire law is based around the mandate, which increases the insurance pool in hopes that costs will still be manageable by spreading out the risks.
Without the mandate, Obamacare is essentially over. There is no way for the law to exist without the mandate, even if the mandate is legally the only unconstitutional aspect determined by the Court.
Once Obamacare has been overturned by the Supreme Court, we can get on with real health care reform in this country. President Obama’s political standing will be further diminished, and Republicans can start proposing new plans that actually reduce cost such as tort reform. Healthcare reform can be done piece-by-piece, rather than in just one omnibus bill that costs billions (and with new estimates, trillions) of dollars.
There is a good chance the Supreme Court can make this happen. I believe the Court will overturn Obamacare’s individual insurance mandate. After all, Congress can’t mandate that you eat your broccoli.
Tyler is a sophomore. He can be reached at tbecker1@swarthmore.edu.
