This editorial will appear in Friday’s print edition.
Well, is it or isn’t it?
The question of whether the federal health care insurance mandate is constitutional is all but certain now to go where everyone knew it would eventually – the U.S. Supreme Court.
The mandate for all Americans with taxable income to purchase at least minimal health insurance by 2014 is part of the Patient Protection and Affordable Care Act approved by Congress in 2010. It has been challenged by 26 Republican attorneys general – including Washington’s Rob McKenna.
Two federal appeals court panels have ruled on it: The 11th Circuit Court of Appeals panel (Florida, Georgia and Alabama) struck down the mandate as unconstitutional but upheld the rest of the law while the 6th Circuit panel based in Ohio upheld the law and the mandate. With two federal courts ruling in opposite ways, the mandate was going to get to the Supreme Court eventually. But separate requests from both the Obama administration and the AGs have speeded up the process.
While the justices almost certainly will agree to hear the arguments, and might decide on it by summer, they could hold off on a ruling until 2015 – the year the penalties for failing to have health insurance would go into effect.
It would be a mistake to wait. Without the mandate, millions of Americans who can afford to buy health insurance will continue to be free-riders. An estimated $116 billion was spent on uninsured people’s medical care in 2008, according to U.S. Solicitor General Donald Verrilli Jr. Who paid for that? Taxpayers and those who do have insurance – through higher rates.
If the mandate is found to be unconstitutional, then Congress will need to start working on an alternative quickly. Waiting until 2015 would just put off the heavy lifting; in the meantime, costs will continue rising. The cost of employer-provided health insurance rose 9 percent this year over last year – the biggest premium increase in six years.
While employers paid most of the cost – an average this year of $15,073 for families – employees’ contribution has increased 168 percent since 1999. That’s more than three times the rate that their wages increased and more than four times the rate of inflation.
The nation – and individual Americans – have a huge stake in controlling health care costs, and getting more people insured is an important part of that. What’s needed is certainty, and only the Supreme Court is in a position to provide it. It must address the mandate’s constitutionality as quickly as possible.