02/04/2011 04:23 pm ET | Updated May 25, 2011

Affordable Care Act and Interstate Commerce: What's Missing

Earlier this week, United States District Judge Roger Vinson of the Northern District of Florida (Pensacola) ruled the mandate to require all Americans to purchase health insurance in the Affordable Care Act ("ACA"), a.k.a. "Obamacare", unconstitutional as it does not constitute activity (or inactivity for those not wanting to purchase it who are then penalized) that regulates commerce among the states. Whether it does or not is left for another day before the United States Supreme Court and over which constitutional scholars will now debate and squabble.

Just the other day, former U.S. Solicitor General under Reagan and Harvard law prof, Charles Fried, gave testimony before the Senate Judiciary, saying that the mandate was constitutional since the regulation of insurance is the regulation of commerce and the Supreme Court has so held over many, many decades. But significantly, Vinson is the first judge to also throw out the act in its entirety, opining that since the mandate was the heart and soul, or engine, of the health reform law, without it, the legislation loses the meaning for which Congress enacted it -- to provide legislation enabling Americans to afford and access health care insurance and thus affordable health care. His Honor also found that no where within the entire legislation was there a severability clause, that is, a provision allowing him to sever the mandate without affecting the remaining parts of the act.

What is missing from the discussion is the reason why the mandate was inserted into the law in the first instance. This mandate was not Obama's first choice. After all, from his debate with McCain in Nashville in the Fall of 2008, he believed that health care was a right for all, and not a privilege for the few or for those who could afford it, nor a responsibility. (This writer previously opined similarly ("Is It Time for Universal Health Coverage?", "Universal Coverage: How To Get There", Clinical Endocrinology News, July, August issues, 2008). Given this pronouncement, it was clear that the predicate for creating this right was through strong and effective competition with the private market, and for Obama, his avenue to accomplish this was the public option or a structure akin to it. The insurance industry did not want this, for competition -- though favorable from the public's viewpoint because it would lower the cost of an insurance premium -- would take away from the profit margin required to pay for the benefits found within the, now, health care law. The mandate is what insurers thus wanted and thus what drove its lobbyists to ensure it went into any final version of ACA. (This is besides the fact that there are no real controls to curtail premium price increases, even now. That is the reason, for example, that there has been proposed a 59% increase in premium price by a major health insurer in California, effective the first of next month).

How ironic it is that what may derail health care reform is precisely the vehicle the insurance industry chose to fund it, instead of backing a public option. So now, the shoe is on the other foot, in the sense that insurers as a key constituent of those on the Hill who voted to repeal health care reform now face a Hobson's Choice of its own making, either reverse course on supporting efforts to "deep six" ACA on account of the mandate (where it is bound to make gobs of mullah since everyone has to buy insurance), or maintain the status quo, viz, see the law repealed, only to be replaced by stiffer competition a la a public option approach that will earn the industry way less. Again, if we look at health care as a right, the best way to achieve it is to make health care -- more properly, health care insurance -- more affordable and more accessible.