3Qs: Supreme test coming for health-​​care mandate

On Tuesday, U.S. Dis­trict Judge Gladys Kessler, of the Dis­trict of Columbia, became the third fed­eral judge to uphold the con­sti­tu­tion­ality of the new health-​​care law’s require­ment that Amer­i­cans pur­chase health insur­ance or pay a penalty. Two fed­eral judges have ruled against the con­sti­tu­tion­ality of the man­date, including Roger Vinson, who struck down the entire law ear­lier this month. Wendy Parmet, Matthews Dis­tin­guished Pro­fessor of law at North­eastern Uni­ver­sity, assesses the debate.

Is the so-called “individual mandate” constitutional?

Yes, under settled law. If we understand the relationship between the federal and state government in the way that’s been understood for much of our constitutional history, and certainly since the New Deal, then there’s ample federal authority for the government to impose a tax penalty on Americans who fail to have health insurance. But we also have to understand that the perceived power of the federal government has waxed and waned over the course of our history. It is always possible that the relationship may be changing again. Although precedent supports the mandate, two judges have found it to be unconstitutional, and it is certainly possible that the Supreme Court will do likewise.

Democratic presidents appointed thethree judges who ruled in favor of the law, but Republican presidents appointed the two judges who ruled against the law. Are personal politics getting in the way of sound decision-making?

This is a deeply divisive ideological issue. It’s almost impossible for a judge’s world view not to affect his or her perception of the issues at stake. Having said that, I wouldn’t say the judges are necessarily acting in a partisan manner. In some ways, this decision depends on perceptions of the role of the federal government over which the parties, and many Americans, are deeply divided. So, it’s not surprising that we’re seeing Democratic judges rule one way and Republican judges rule in the opposite direction.

Judge Vinson writes that the commerce clause of the Constitution prevents Congress from legally requiring individuals to purchase health insurance. On the other hand, the Obama administration says it has the power to enact the individual mandate in order to regulate interstate commerce in health care. Who’s correct?

The Constitution gives the federal government broad, plenary power to regulate interstate commerce. In addition, the Constitution gives the federal government the authority to enact laws that are “necessary and proper” to support Congress’ power under the commerce clause. Health insurance is undoubtedly interstate commerce and the so-called mandate is without question both a regulation of interstate commerce and a law that is necessary and proper to support a regulation of interstate commerce. From that perspective, the federal government clearly has the power to enforce the mandate. Opponents of the law argue, however, that the federal government can only regulate activity with regards to interstate commerce, not inactivity. Since not buying insurance is inactivity, the provision is invalid. Interestingly, the Constitution’s text does not distinguish activity from inactivity. Still, the distinction has had a powerful resonance with at least two judges and many of the act’s opponents. Ultimately the Supreme Court will have to decide whether the mandate survives as a regulation of interstate commerce, or whether Congress’ power is limited by this activity/inactivity distinction.

1 comment

  1. The answer is that it doesn’t cost less ..if you don’t cen­sidor what the employer is paying. That’s why so many people think COBRA is expen­sive. COBRA isn’t expen­sive, it’s just that when you con­tinue your group plan under COBRA it’s the same plan, at the same cost (plus maybe 2% for admin), but it seems expen­sive because your employer is no longer contributing.Individual plans ARE CHEAPER than group because you can be turned down. In group plans nobody can be turned down, so the cost to cover all the health prob­lems escalates.The biggest mis­take people make is assuming that their work cov­erage is more com­pet­i­tive without shop­ping. It’s not uncommon, espe­cially for young, health people, to be able to get cheaper plans on their own even when the employer is picking up half the cost.Finally, most small com­pa­nies will just have their employees buy indi­vidual plans because it’s a frac­tion of the cost .though either way it’s always nicer when someone else is picking up the tab.

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