And yes, in the process, this same minority affects interstate commerce --- for which the U.S Congress has ample powers to regulate such commerce through legislation such as the ACA, such powers being granted to it under the Constitution and confirmed to it by prior Supreme Court decisions.
Truth be told, from the very outset of the ACA being drafted, I was slightly bothered with the concept of the mandate and the imposition of a contractual obligation being imposed upon U.S. citizens. But my thinking has evolved to the point where I can now accept that concept as the greater good for the general welfare of the U.S. population. I hope the Justices come to see it that way too, but I'm concerned political partisanship has infected the Court of Chief Justice Roberts --- or has it just metastasized so we find ourselves where we are today?
Reprinted below is an excellent article on the health-care arguments before the U.S. Supreme Court. I've highlighted in yellow a quote by Switzerland’s former secretary of health, Dr. Thomas Zeltner. Perhaps this should be a starting point as we think about the mandate contained in the ACA.
1. Whether Congress has the constitutional authority to mandate every legal resident in the United States to have insurance coverage for a specified package of health benefits (hereafter the “mandate”) or whether that is an issue for the states to decide.
2. Whether Congress has the constitutional authority to expand eligibility for Medicaid benefits from the highly varied income thresholds that currently define eligibility to anyone under 133 percent of the federal poverty level (hereafter the “Medicaid expansion”).
Severability: If the court ruled that either the Medicaid expansion or the mandate, or both, were unconstitutional, it would then have to decide, for each provision, whether striking it down invalidated the entire Affordable Care Act or whether only the stricken provision was invalidated.
The legal jargon for this issue is “severability.” To avoid having entire laws invalidated over one provision that may be found unconstitutional by the court, legislation typically includes an explicit severability clause. For either strategic reasons or inadvertently, such a clause was not included in the Affordable Care Act.
The legal jargon for this issue is “severability.” To avoid having entire laws invalidated over one provision that may be found unconstitutional by the court, legislation typically includes an explicit severability clause. For either strategic reasons or inadvertently, such a clause was not included in the Affordable Care Act.
The Supreme Court devoted a session of argument on Wednesday to this issue, and the questioning by the justices suggested a range of opinions on the issue, so what the future of the entire law may be is uncertain.
The Anti-Injunction Act: To rule on the mandate, the court will first decide whether the Anti-Injunction Act of 1867 applies to the mandate. The crucial issue here is whether the penalty exacted from individuals who choose not to obey the mandate to be insured is to be construed as a mere penalty or a genuine tax.
If the latter, under the Anti-Injunction Act the court should hear the case and rule on it only after someone has actually been forced to pay the penalty for violating the mandate, which could occur only in 2015 or thereafter.
The consensus among legal experts appears to be that the court will not feel bound by the Anti-Injunction Act and will rule on the mandate this year, most likely by the end of June.
The Mandate: I have discussed the mandate in several earlier posts, including this one. As explained there, a mandate on individuals to be insured is an actuarially necessary complement to two strictures on private insurers that seem to be popular with the public:
1. “Community-rated” premiums, that is, premiums divorced from the health status of any particular applicant for insurance and charged to all applicants for an insurer’s coverage
2. “Guaranteed issue,” that is, the requirement that an insurer must sell an insurance policy to any applicant willing to pay that insurer’s community-rated premium for that policy.
For decades, Americans have lamented in vignettes published by various news organizations the families, stricken with serious illness, who find themselves unable to procure health insurance at premiums they can afford or are refused coverage altogether.
The Affordable Care Act was written to solve this problem by subjecting private health insurers to community rating and guaranteed issue.
But if Americans want the benefits of these two strictures, they must also be willing to countenance the mandate to be insured. It is not legislative hegemony. It is an actuarial necessity
As I had noted in a post, that insight was shared during the 1990s by many Republican policy analysts and policy makers, including Senator Orrin Hatch of Utah, who now views the mandate as a violation of individuals’ freedom. Republican legislators then openly countenanced the mandate and embodied it in federal legislation they proposed.
One can also view being insured for at least catastrophic health care a civic responsibility, as is the case in most other industrialized nations, including freedom-loving Switzerland. For example, asked in an interview in Health Affairs in August 2010 how he could defend the mandate to be insured to Swiss citizens, Switzerland’s former secretary of health, Dr. Thomas Zeltner, responded:
The Affordable Care Act was written to solve this problem by subjecting private health insurers to community rating and guaranteed issue.
But if Americans want the benefits of these two strictures, they must also be willing to countenance the mandate to be insured. It is not legislative hegemony. It is an actuarial necessity
As I had noted in a post, that insight was shared during the 1990s by many Republican policy analysts and policy makers, including Senator Orrin Hatch of Utah, who now views the mandate as a violation of individuals’ freedom. Republican legislators then openly countenanced the mandate and embodied it in federal legislation they proposed.
One can also view being insured for at least catastrophic health care a civic responsibility, as is the case in most other industrialized nations, including freedom-loving Switzerland. For example, asked in an interview in Health Affairs in August 2010 how he could defend the mandate to be insured to Swiss citizens, Switzerland’s former secretary of health, Dr. Thomas Zeltner, responded:
That’s easy. We will not let people suffer and die when they need health care. The Swiss believe that in return, individuals owe it to society to make provision ahead of time for their health care when they fall seriously ill. At that point, they may not have enough money to pay for it. So we consider the health-insurance mandate to be a form of socially responsible civic conduct. In Switzerland, “individual freedom” does not mean that you should be free to live irresponsibly and freeload from others, as you would put it.
Part of American exceptionalism, which we feel sets us apart from other nations, seems to be that Americans believe they have a moral right to critically needed health care, whether or not they can pay for it, but also believe that they should be free not to make financial provision for that event beforehand.
If the Supreme Court strikes down the mandate as unconstitutional — as it very well might, judging from the sharp and skeptical questions asked by the justices in arguments on Tuesday — it could lead to one of two distinct pathways.
First, as the Obama administration asserts, community rating and guaranteed issue would then have to be stricken from the Affordable Care Act. We would be back to the vignettes of Americans complaining about private insurers doing their actuarially sound and defensible thing, which can, however, be so devastating on American families.
An alternative would be to let these two provisions stand and force the insurance industry to live with them. As I explained in an earlier post, it would lead to what actuaries call the “death spiral” of individually purchased insurance, with shrinking risk pools of ever-sicker individuals and, naturally, ever-mounting premiums.
One could lambast the insurance companies for these ever-rising premiums, of course, but informed observers know better: the culprit would be the absence of a mandate to be insured. New York and New Jersey, which imposed community rating and guaranteed issue without a mandate to be insured, are living proof of that assertion. Risk pools there have shrunk and community-rated premiums have skyrocketed.
The Medicaid Expansion: As is shown in the chart above, the Anti-Injunction Act does not affect the court’s jurisdiction over the Medicaid expansion. If I had to bet, the court will rule this provision constitutional. After all, a state does not have to take part in Medicaid, which is heavily subsidized with federal money. The program is voluntary.
If the Supreme Court strikes down the mandate as unconstitutional — as it very well might, judging from the sharp and skeptical questions asked by the justices in arguments on Tuesday — it could lead to one of two distinct pathways.
First, as the Obama administration asserts, community rating and guaranteed issue would then have to be stricken from the Affordable Care Act. We would be back to the vignettes of Americans complaining about private insurers doing their actuarially sound and defensible thing, which can, however, be so devastating on American families.
An alternative would be to let these two provisions stand and force the insurance industry to live with them. As I explained in an earlier post, it would lead to what actuaries call the “death spiral” of individually purchased insurance, with shrinking risk pools of ever-sicker individuals and, naturally, ever-mounting premiums.
One could lambast the insurance companies for these ever-rising premiums, of course, but informed observers know better: the culprit would be the absence of a mandate to be insured. New York and New Jersey, which imposed community rating and guaranteed issue without a mandate to be insured, are living proof of that assertion. Risk pools there have shrunk and community-rated premiums have skyrocketed.
The Medicaid Expansion: As is shown in the chart above, the Anti-Injunction Act does not affect the court’s jurisdiction over the Medicaid expansion. If I had to bet, the court will rule this provision constitutional. After all, a state does not have to take part in Medicaid, which is heavily subsidized with federal money. The program is voluntary.
For the expansion, the federal government would pick up 100 percent of the cost in the first three years, which descends over time to 90 percent thereafter. For the existing enrollment, the federal government traditionally has picked up 50 to 80 percent of the program’s cost.
The opponents of the expansion appear to hold that for the federal government to make all of its generous Medicaid subsidies to a state conditional on that state’s agreement to expand Medicaid eligibility to 133 percent of the federal poverty level is so powerful a fiscal incentive as to be coercive and hence unconstitutional, even though participation in Medicaid is voluntary. It strikes me as a stretch.
