Uncertain mandate on health care

The Chicago Tribune reports:

“The Obama administration’s massive health insurance reform plan had to pass through numerous minefields before it finally became law. Now it has entered a new and equally uncertain part of the journey — the path through the courts. Monday, a federal judge struck down a part of the law on which its success may depend.

Judge Henry Hudson, of the U.S. District Court in Virginia, ruled that while Congress has the power to regulate the insurance industry, it may not force individuals to buy coverage.

The Constitution authorizes the federal government to regulate interstate commerce, which means broad latitude to regulate economic activity. But the judge said the refusal to buy insurance is not economic activity; it is inactivity. Nothing in previous Supreme Court decisions establishes the government’s power “to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” he concluded.

Two other courts have disagreed. In their view, people who decide not to buy insurance are deciding to pay for their costs out of pocket — or to let someone else bear those costs, however high they may be.

In 2008, hospitals and doctors provided $43 billion in uncompensated care. The mandate was intended to stop this sort of free riding by insisting that everyone carry a fair share of the cost load.
Whether it will pass judicial muster, though, is now anyone’s guess. The insurance purchase requirement is, in a sense, unprecedented, going beyond what the courts have previously permitted. To anyone who thinks federal power is limited, it raises troublesome questions.

But it appears indispensable to the other reforms in the law — such as rules obliging insurance companies to accept all comers, limiting the premiums they can charge and barring them from canceling coverage for customers who get sick. Without the mandate, a lot of people will wait to buy coverage until they get sick, effectively allowing them to escape much of the burden of universal coverage while enjoying the benefits.

The question will eventually have to be answered by the Supreme Court. If the court were to overturn this requirement, Congress and the president would have to look for other, less reliable ways to induce individuals to obtain health insurance, including more generous federal subsidies. But pulling out this one strand may also cause the entire scheme to unravel.

In that case, there is another option — congenial to many liberals but anathema to conservatives who oppose the mandate: Washington could adopt a single-payer, Medicare-style program for everyone, largely doing away with private insurance. Much more likely, and more to our liking, the nation would have to accept something far short of universal coverage.

The view here was that the individual mandate was defensible policy, based on the idea that each person should take responsibility for his or her own health care bills rather than impose the burden on others. Ultimately, we didn’t endorse the national health care legislation because of its size and scope and cost. Reconciling all the conflicting goals of health care policy was always a task on the order of solving a Rubik’s cube. Once the courts have their say, it may get even harder.”