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A conservative defense of the individual mandate

Post by TNT Editorial Board / The News Tribune on July 2, 2011 at 3:38 pm |
July 1, 2011 5:41 pm

This editorial will appear in Sunday’s print edition.

Legally, the soft underbelly of “Obamacare” is its mandate that most Americans carry health care insurance. It got some much-needed armor last week from a federal appeals court.

Conservatives – who are otherwise big on personal responsibility – have locked onto that requirement as the most vulnerable target in the Affordable Care Act, which promises to extend health coverage to millions of uninsured Americans in 2014.

Trial judges aren’t supposed to decide cases on ideological grounds, but you’d never know it from the lawsuits against the individual mandate. According to Politico, the court decisions have split cleanly along partisan lines: Judges appointed by Republicans have all ruled against the law, and judges appointed by Democrats have all ruled for it.

That curious string of coincidences finally broke Wednesday when a respected conservative jurist – and former clerk to Supreme Court Justice Antonin Scalia – upheld the constitutionality of the maligned policy. Jeffrey Sutton of the Sixth U.S. Circuit Court of Appeals provided the pivotal vote in favor of the mandate in its first test at the appeals level.

Opponents of the law make a serious argument: If Congress has the power to force citizens to buy a private product (health insurance), what can’t it force them to do? Can it order them to eat spinach, join the YMCA or take vitamins for the sake of their health?

But Sutton points to the uniqueness of health insurance: “Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law.”

That’s the core issue. The Commerce Clause allows Congress to regulate the marketplace of health care, and virtually everyone is in that marketplace by virtue of the fact that they will get seriously sick and they will get at least some care when they get seriously sick.

The individual mandate helps ensure that irresponsible people don’t rip off their fellow citizens when they wind up in the hospital or emergency room.

Health care providers are unlike other merchants: Many of them are required by law to treat sick people whether they pay for that treatment or not. Citizens who can afford insurance but don’t buy it – free riders – stick it to the rest of us when they rack up a $10,000 or $20,000 medical bill they can’t afford. When they don’t pay, responsible Americans wind up swallowing the bill through cost shifts.

Just like mandatory car insurance, this is all about personal responsibility. We don’t see too many of the free riders pledging not to use the emergency room or MRIs or cancer surgery when they need them. Hence they are in the market. The individual mandate simply prevents them from walking out the door with unpaid merchandise.

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