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Healthcare at the high court

Can Congress require Americans to buy health insurance? The Supreme Court should say yes.

November 16, 2011

After last year's sweeping healthcare reform law drew more than 30 lawsuits challenging its constitutionality, it seemed just a matter of time before the measure had a day of reckoning at the Supreme Court. On Monday, the court announced that day would come next year, in advance of the presidential election, when it has agreed to hear appeals on five of those lawsuits and to consider at least four separate legal issues. Two of them concern the limits of congressional power, a hot-button issue for those who fear that the new law endangers personal liberty. But as several lower courts have found, the measure fits within the constitutional boundaries already laid out by the courts. The justices can — and should — find it constitutional without clearing the way for Congress to intrude in any and every aspect of American life.

The main complaint about the law is that, starting in 2014, it requires virtually all adult Americans to carry health insurance or pay an extra tax. One federal appeals panel has ruled that this "individual mandate" is unconstitutional, saying Congress doesn't have the authority to force people to buy health insurance or any other product of private industry. The limit to Congress' authority to regulate interstate commerce, that court found, is that it extends only to activity, not inactivity. And choosing not to buy insurance, in this view, is a form of inactivity that Congress can't regulate.

Other federal courts have disagreed, including, most recently, the Court of Appeals for the District of Columbia Circuit. Writing for that panel, Judge Laurence Silberman (a Reagan appointee) ruled that the individual mandate is constitutional because it regulates the way people pay for their inevitable participation in the market for medical care. In addition, he wrote, the mandate is a critical part of the new rules Congress created for the insurance industry, which are designed to expand coverage and stop insurers from discriminating against people with preexisting conditions. As the Supreme Court has previously decided, Congress can intervene in local, individual decisions when necessary to support a legitimate regulatory regime for interstate commerce.

That's cold comfort for those concerned about how far Congress might go if it is given the green light to order Americans to buy a product from private companies. But there is one final limit on congressional power that stops lawmakers from, say, requiring Americans to eat more vegetables or buy a General Motors car: the threat of a voter backlash. The Constitution may not stop Washington from doing things the public doesn't like, but the ballot box can.

A related question before the court is whether the entire act should be thrown out if the individual mandate is found unconstitutional, or whether the rest of the law's provisions would remain in force. The insurance reforms would be well-nigh unworkable without the requirement to buy coverage. Because insurers would be required to offer policies to everyone without charging more for those with preexisting conditions, many healthy people would wait to buy insurance until they needed care. That would drive up premiums, leading more people to drop coverage and creating a vicious cost spiral. But that doesn't mean the whole law should be thrown out if the mandate is rejected by the court. There are other steps Congress could take to deter that sort of gamesmanship without a mandate, such as letting insurers impose waiting periods for coverage to take effect. Besides, the law includes important provisions aimed at improving the quality of healthcare and reforming the way it is delivered and paid for. Those reforms shouldn't be lost if the insurance mandate is thrown out.

A third issue is the contention by a group of state attorneys general that the law's expansion of Medicaid violates state sovereignty by coercing states to spend more on healthcare for low-income residents. They're right in one respect: The expansion, which will extend coverage to more poor and working-class adults, will cost states money even though the federal government would cover most of the expense. But Medicaid is voluntary for states. If they don't want federal help in insuring the poor, they don't have to take it — or offer insurance to those residents. But if they do want the help, Congress can and should set the terms.

The final major legal dispute could potentially make moot the issue of the individual mandate until 2014. One appeals panel has ruled that the mandate is a tax, and federal law bars individuals from trying to block a tax in court before it goes into effect. But as Silberman noted in his ruling, the penalty levied on those who don't carry insurance isn't a tax because it wasn't created to raise money for the Treasury. It's a penalty designed to encourage people to carry insurance, for the sake of better public health and a more efficient medical system.

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