Even close Supreme Court watchers are reluctant to predict what the justices will decide about the constitutionality of the Patient Protection and Affordable Care Act (PPACA). In this relative calm before the rhetoric inevitably escalates -- no matter what the decision is -- it might be useful to review the case.
First, no one disagrees that the health insurance market is interstate commerce. Article One, Section Eight of the Constitution says that "The Congress shall have Power... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes... " The final provision of that section gives Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers... "
So, since health insurance is interstate commerce, and Congress has the power not only to regulate it, but also to make all laws that are "necessary and proper" for executing its power, why isn't that the end of it?
Some might say Congress could have achieved its goals using another approach and that, therefore, the specific provisions of this law are not "necessary." But a strong case can be made that choosing to rely heavily on reform of the private insurance sector was not only a reasonable approach but the necessary one because, given lessons learned from the long, dismal history of trying to enact reform, it had the best chance of actually passing.
The key provision being challenged is the "individual mandate" requiring nearly everyone to obtain health insurance. The main case for it was that it provided the best chance both to keep down prices and to allow private insurers to provide the intended coverage profitably enough to be willing to participate. Again, why is that not the end of it?
Yet, despite this argument, the Court might find a way to reject the individual mandate. This provision requires almost all Americans to buy insurance through either their employer or a health insurance exchange created by the states for those without access to affordable employer-based coverage. Opponents argue they shouldn't be forced to buy something they don't want even if they would benefit as individuals and a worthy public purpose would be served.
Justice Scalia suggested individuals might rationally decide not to buy insurance if, for example, they are young and healthy, have a low probability of needing expensive services, or have competing needs for their limited income. In fact, whether that is a rational decision is open to question. Since everyone faces a non-zero probability of needing medical care and the cost of the needed services can be expensive, a case can be made that the rational decision is always to find a way to buy insurance -- the least expensive method of paying for services. Further, if it turns out an individual needs care before he buys coverage, it is highly unlikely that an insurance company that knew about his impending need would sell him a policy. Instead, he would be forced to come up with cash to pay for it. If he broke his hip in a fall during his weekly basketball game, his bill could be $20,000 or more.
Justice Alito argued that requiring young, healthy people to pay more than their actuarial risk indicated would "force these people to provide a huge subsidy to the insurance companies" instead of simply paying an amount reflecting their own probable use of services. But that betrays a misunderstanding of insurance, which at its core involves subsidies: Healthy people pay more than the cost of the services they use so that the insurer will have enough to pay for the care of sicker people who use more services.
Justice Kennedy asked, "Can you create commerce in order to regulate it?" What Congress wants to regulate is the health insurance market, which already exists. Does requiring an individual to buy insurance constitute creating commerce? Maybe, but the essence of regulation is that some people will be required to do things they would not do otherwise. In this case, that activity is to buy health insurance. (On the other hand, having bought it, the individual cannot be forced to use it). A key point is that the health insurance market would be vastly different if young, healthy people refused to participate for the reasons Justice Scalia suggested. Premiums would be higher for all, and more would be unable to buy coverage. They either would not get needed services or would use hospital emergency departments so that the rest of us can pay most of their bill. By regulating the existing health insurance market, Congress intends to improve it so that it more nearly serves the public good.
Finally, if the Court still finds the mandate unconstitutional, must it reject the rest of the law? Given its purposes, the law is stronger with the mandate because its primary effects are to lower the cost of coverage (because the risk pool would be so large and diverse) and to increase the profits for participating insurance companies (because millions of new customers multiplied by even a small per-person profit would be huge). As a result, more individuals would benefit from coverage and providers would benefit from more stable funding.
If the individual mandate were declared unconstitutional, however, premiums would increase as would subsidies required to make them affordable to everyone. And some insurers would earn lower profits to the extent that higher premiums forced people to choose lower-priced plans or even to not buy coverage at all and pay the penalty. Some individuals would lose the benefits of regular care and the delivery system would continue to deteriorate. If, instead, the Court let the rest of the law stand, some firms might decide not to offer health plans, but others would pick up the slack -- presumably, increasing their profits because they would enroll more.
A fair reading of the PPACA is that it recognizes the societal benefit of universal coverage -- in addition to the benefit for individuals of having health insurance -- and includes provisions to make it possible for those who would have difficulty paying for it to obtain it. It also includes provisions designed to lower costs and improve the reliability of care, and thus enhance the value of the insurance.
How can a law that benefits individuals -- while recognizing and accommodating their differences -- and strengthens the health care system be unconstitutional? Indeed, Linda Greenhouse, the long-time New York Times Supreme Court reporter, characterized the opponents' arguments as, "There's just no there there." I find it hard to disagree.
Davidson, a professor at the Boston University School of Management, is author of "Still Broken: Understanding the U. S. Health Care System" [Stanford University Press, 2010].
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Because while congress is authorized to regulate commerce, it's not authorized to create commerce so as to then go about regulating it. Not to mention, We, the People, did not authorize our public servants to force us, their bosses, to mak private-sector purchases against our will.
Yes, they have the power to regulate commerce. They don't have the power to CREATE commerce — i.e., force Americans to make a private-sector purchase — so as to THEN go about regulating it.
They get care for free when they need it, because we are a compassionate nation who turns no one in need away.
The Mandate makes sense. It takes all Americans into the mix.
The SCOTUS needs to step away from the chance to legislate from the bench.
They have done enough damage.
The elderly and the sick are more certain to use more care but a single car accident can create more lifetime healthcare needs than one would have in the average life.
Everybody, no matter how healthy, needs to be insured.
You and your ilk are so enamored of "personal responsibility" why wouldn't you want everyone to be insured? If it is because the government is telling you to be insured, I wish the government would tell y'all not to visit the Grand Canyon and not to jump off the edge.
Therefore, the federal government does, indeed have jurisdiction.
The concept of forcing someone to buy insurance, is, indeed, constitutional. Every single state does it with auto liability. This concept has been tested in the courts and found constitutional (I don't like it, but, hey...)
There is NOTHING in the constitutional that draws a distinction about the types of laws the federal government is allowed to pass, compared to those a state is allowed to pass. If the federal government has jurisdiction, there is nothing in the Constitution that says the states can pass such a law, but the feds cannot.
That the Supreme Court is looking at this case is absurd. It only exposes how utterly ideological that court has become. It is a farce.
Secondly, the Supreme Court has determined that driving is a privilege, not a right. You may elect not to drive & then you do not have to obtain auto insurance. So, merely because states can mandate you have auto insurance, the same logic does not apply to the Commerce Clause. The purpose of The Commerce Clause is to provide the government with the authority to regulate Commerce (Business). Individuals cannot be compelled to enter into Commerce so that the government can gain authority over the people.
I strongly support the concept of HCR. I just cannot justify O. Care under our Constitution. It is absolutely Unconstitutional. The only reason the Conservative Court may uphold it is because holding Unconstitutional will make other goper initiatives more difficult for the Court to pass muster on. However, the Court does not always follow the Constitution, especially the Roberts & Rehnquist Courts.
Murder could be made legal or illegal solely based upon its impact on Interstate Commerce. Congress could mandate that every individual purchase a musical instrument because of its affect on Interstate Commerce. Free Speech could be made illegal because certain statements could be found to have an impact on Interstate Commerce. The potential applications are endless. If the framers has intended to provide the Federal Government with such broad & unfettered powers, they would have done so & there never would have been a need for the 10th Amendment. All laws could simply rely upon the authority conveyed in the Interstate Commerce Clause. No substantive argument for such unbridled federal authority has ever been made.
This statement doesn't take into account the basic concept that, over the course of one's life, from birth on, almost EVERYONE uses the healthcare system. So whether or not you go for a few years or a decade without needing it isn't the issue. 99.99% of our populations USES OUR HEALTHCARE SYSTEM FROM THE MOMENT THEY'RE BORN. the best way to make it work well and efficiently is to have everyone paying a smaller amount on a monthly basis their entire lives--from the first time they use it to the last. What you call that payment--a premium, a mandate, a tax, a penalty--is just semantics.
The same can easily be found to be true of insurance companies who purchase staples, office furniture, pens, paper or ANY other supply which is part of Interstate Commerce. The problem with the application the author attempts to make is that individuals are not necessarily part of Interstate Commerce. Commerce connotes business, not people. That is the basis for the argument that the Interstate Commerce Clause simply cannot be the basis of compelling individual behavior.
It was NEVER intended as a method to provide Congress with unlimited authority to regulate the lives of the nation's citizens.
I am.
Are there any insurance companies that don't operate across state lines? My car insurance is with Allstate. Their headquarters is in Illinois. I live in South Carolina. How many state lines does that cross?
Folks, from Scalia right down to the republican congress they are ethically and morally sick.And I mean what I say.
I've yet to read an article where the HCA is deemed bad or inappropriate that offers the clarity of this one and isn't mostly rhetoric. I would invite anyone to put in a link that is of the opposing viewpoint.
Since no one else has yet to comment on this article, I don't know if anyone will read this but if you do I'd like to hear from you on it.
Mine surely will.
If yours doesn't, then you had better to plan to drive a whooooole lot more carefully, next time you take a trip!
Virtually all of the insurance operates across state lines, not just coverage, but operationally. The entire phramaceutical industry is interstate (does anyone make aspirin in YOUR state?), as is the medical equipment industry. Are MRI machines made in your state?
Many healthcare organizations operate in many states. My wife works in a hospital system with hospitals in several states.
Even medical education, for heaven's sake, is truly national (i.e., 'interstate'), because med school grads are assigned to internship on a national basis, not a state basis.
It is about as 'interstate commerce' as it gets.