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The individual mandate: It's constitutional

The legal case against it almost certainly will make its way to the Supreme Court before the individual mandate is due to take effect in 2014. But considered in its proper context, it doesn't violate the Constitution.

December 15, 2010

The legal battle over the federal healthcare reform law boils down to an argument over how to balance two opposing principles within the Constitution: the broad power granted to Congress to regulate interstate commerce, and the liberties reserved to individual citizens. In a series of decisions over the past century, the Supreme Court has relaxed the limits on Washington's power over commerce, leading some conservatives and libertarians to fear that Congress could interfere in just about any decision made by businesses and their customers.


FOR THE RECORD:
Individual mandate: A Dec. 15 editorial on the healthcare reform law's rule that individuals buy insurance said that Christian Scientists are exempted. They are not. —

To these critics, the Patient Protection and Affordable Care Act's requirement that adults obtain health insurance represents a new milestone in congressional overreach. And on Monday, District Judge Henry E. Hudson in Richmond, Va., gave them their first courtroom victory. According to Hudson's ruling, the so-called individual mandate is unconstitutional because Congress' power to regulate a market extends only to people who choose to participate in that market. The Constitution's commerce clause doesn't give Congress the power to force people to buy something against their will.

That may be a fine boundary to set for lawmakers. But contrary to Hudson's pinched view of the individual mandate, Congress did not cross that line in the Affordable Care Act. That's because the mandate isn't merely an attempt to regulate the purchase of insurance. It's a vital part of a larger scheme to overhaul the healthcare industry, including the way medical services are delivered and paid for.

There's no question that healthcare is a form of interstate commerce subject to regulation by Congress. Nor is there any question that the adults subject to the individual mandate participate in that market, whether it be buying aspirin at a drugstore, visiting a doctor for a checkup or rushing to an emergency room for treatment. (The law exempts Christian Scientists and others who abstain from medical care for religious reasons.) The individual mandate affects how people pay for the care they consume, but it doesn't force them into the healthcare market — they're already there.

In that sense, what's at stake isn't Americans' cherished "right to be let alone." It's whether they'll continue to be stuck in a system in which millions of uninsured people force those with insurance to pick up at least part of the tab for their visits to the emergency room and for the untreated diseases that they spread. Two other federal judges have held the law to be constitutional for just that reason. As District Judge George Caram Steeh in Michigan wrote in an October ruling, "Far from 'inactivity,' by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for healthcare services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars — $43 billion in 2008 — onto other market participants."

More federal judges will render opinions on separate challenges to the Affordable Care Act in the coming weeks, and the case almost certainly will make its way up the judicial ladder to the Supreme Court before the individual mandate is due to take effect in 2014. As shown by the first few rulings, how the courts define the relevant market makes all the difference in this case. With more than 2,000 pages of regulation affecting virtually every aspect of medical care in this country, the Affordable Care Act is far more than just a new insurance regulation. If the courts consider the mandate in its proper context, they'll see that it doesn't violate the Constitution.

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