THE BLOG

The Individual Mandate Must Be Kept Constitutional

08/15/2011 12:57 pm ET | Updated Oct 15, 2011

Admittedly, it is a very thoroughly analyzed and exhaustively researched 291 page opinion (including dissent). The 11th Circuit federal court of appeals decided on August 12, 2011 to preserve "Obamacare" (Affordable Care Act, or "ACA") while finding the mandate in it to have every American purchase health care insurance to be an unconstitutional use of Congressional authority to regulate interstate commerce. This is troublesome and problematic, notwithstanding my previously expressed view that Americans may "win" because of it (http://www/huffingtonpost.com/miles-j-zaremski/americans-win-if-the-heal_b_926083.html). I cannot quibble with the legal analysis provided by this court as to why it believes the mandate to be unconstitutional; concomitantly, I could not find much to dispute in another federal appeals decision (6th Circuit (Thomas More Law Ctr. v. Obama))) that found the mandate to be constitutional. We have yet to hear from the third federal appeals panel (4th Circuit in Richmond, Va.) that heard oral arguments recently on the same issues. Regardless, it is very likely that the Supreme Court will now want to have the last word.

The core issue for the 11th Circuit, as with the 6th Circuit, was whether requiring Americans to purchase health insurance from a private company without time limits was an activity that "substantially (affected) interstate commerce" (quoting the 11th Circuit). The majority of that panel said "no"; the majority of the 6th Circuit opined it did. The 11th Circuit majority also was not persuaded that health care was so unique that requiring the purchase of health policies by everyone had a substantial impact on interstate commerce. This author would strenuously disagree; health care is unlike most everything else in our existence -- without our health we can do, and have, nothing. Indeed, health care must be a right for all of us so that accessing and affording to be healthy is within reach of every single American.

Regardless of how and what the 11th Circuit wrote, there is a passage equally, if not more, worthy of observation within what it wrote -- and that the mainstream media is missing. The court found essentially irrelevant that the mandate had a (claimed) designed, "to counteract the significant regulatory costs on insurance companies and consequences from the fully executed reforms. This may be a relevant political consideration, but it does not convert an unconstitutional regulation (of an individual's decision to forgo purchasing an expensive product) into a constitutional means to ameliorate adverse cost consequences on private insurance companies engendered by Congress's broader regulatory reform of their health insurance products." (Court's opinion, at p. 165) The dissenting judge latched onto this thought in a good deal of his opinion.

We know from the debate on ACA that a mandate was never Obama's choice; the mandate was forced upon him as a compromise position by his opposition and those entities -- insuring entities and their member associations -- that supported his opposition. What Obama wanted was the public option, or some operating entity akin to it that would have provided necessary and needed competition to the prices charges for health policies in the private insurance market. This market also knew that ACA would provide benefits, like coverage for pre-existing conditions, never offered before. And paying for this new coverage would take away from an already very profitable bottom line. The mandate that forced everyone to buy insurance was the answer since insurance companies would reap $billions more in premiums that would only add to their profit margin, even after paying for the new benefits.

But if the mandate is ultimately ruled unconstitutional, this funding mechanism disappears, leaving insurers to then have to increase the (astronomical) amounts they already charge for health policies. After all, there is no law that caps what insurers can charge. And this means millions more Americans will not be able to afford or access our health care system, leaving us back at square one. Additionally, skyrocketing premiums may well place additional pressure on government coffers because ACA provides federal subsidies to pay for insurance. Any such added pressure could well lead to a cut back in other programs in ACA, such as an expansion of Medicaid (upheld by the 11th Circuit) and Medicare. Surely these results all have a substantial impact on interstate commerce however it is viewed. Logic then says, too, that not upholding the mandate places our nationwide system of health care for everyone further past fail-safe than it is already (and unchallenged statistics show that $43 billion is already spent by those who can afford coverage and the health care system on those who cannot afford to see a doctor or pay for hospital care).

While many say the development and (re)formation of legal principles by jurists is always a "johnny come lately" to any fact pattern, particularly those that are on the cutting edge like we face with the mandate, our courts ultimately take into account the times and circumstances in which they are asked to interpret and analyze the issues and legal authority that has come before. That is why the 11th Circuit's decision to find the mandate unconstitutional is not in keeping with what has been occurring with health care in the U.S. In the end, wouldn't it be wiser to (a) find health care for all citizens so unique that, without all Americans being able to access and afford it, all economic markets and federal commerce (family, local, regional and nationwide) are substantially affected; and (b) that any constitutional analysis must incorporate what has happened to Americans' ability to be and remain healthy -- and the times dictate that the American health care system cannot go back to where it was before ACA was enacted; it (ACA) is a sure-footed start and to destroy its core funding mechanism only means more of a hole from which American health care has to dig out, or, more likely, from which it may never dig out. This is an ominous sign for what (health care) should be, once more -- a right for all.