Wednesday, April 25, 2012

The individual mandate is a piece of Cake

Thinking about insurance mandates, and the limited and disputed analogy between requiring people to insure their cars and requiring them to insure their bodies (and minds), a lyric argument for the defense came to mind. It's from the group Cake:
So we think that we're important
And we think that we make sense
And we think there's something better on the other side of this fence
And you can soak your bread in gravy
You can soak your bread in soup
But the car that you are driving doesn't really belong to you
So you know you'll always be waiting
Always be waiting
For someone else to call .. (my italics, natch).
According to dream lore, horses stand in for our bodies in dreams, and in this century the family Camry stands in for the old gray mare. We own our cars (nonmetaphorically), and for most purposes, relative at least to other people, we "own" our bodies -- but both can incur costs, willy nilly, that others will have to bear if we are not insured. Failing to insure our mortal coils before we shuffle them off is quite as costly to our fellows as failing to insure our vehicles.

Because all of us are active in the healthcare market, ruled  the U.S. Court of Appeals, 6th Circuit, upholding the individual mandate in Thomas More Law Center v. Obama, "self-insuring" is as much an economic activity as purchasing insurance (the two concurring judges also held that the distinction between activity and inactivity as a focus of Congressional regulation has no Constitutional validity).   Judge Boyce Martin, writing the majority opinion, held:

The activity of foregoing health insurance and attempting to cover the cost of health care needs by self-insuring is no less economic than the activity of purchasing an insurance plan ..(p. 19).

Furthermore, far from regulating inactivity, the minimum coverage provision regulates individuals who are, in the aggregate, active in the health care market...Thus, although there is no firm, constitutional bar that prohibits Congress from placing regulations on what could be described as inactivity, even if there were it would not impact this case due to the unique aspects of health care that make all individuals active in this market (p. 25). 
The Supreme Court justices skeptical about the constitutionality of the mandate demanded a "limiting principle" - a rule that would constrain Congress from imposing various purchase mandates at will, such as for health club membership or broccoli.  "The unique aspects of health care" provide one part of such a principle -- but health clubs could conceivably be deemed an element of health care.  Further limiting the scope of the approval of the mandate, however, was the partly concurring opinion of Judge Jeffrey Sutton, a former clerk for Scalia and an appointee of George W. Bush.  Sutton took quite seriously the charge that upholding the mandate would free Congress to impose purchase mandates at will. Ruling in favor of the mandate, however, Sutton first exposed in detail the incoherence of an activity/inactivity distinction, and then stressed the uniqueness of the health insurance market:
That brings me to the lingering intuition--shared by most Americans, I suspect--that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership?..And if Congress can do this in the healthcare field, what of other fields of commerce and other products?

These are good questions, but there are some answers. In most respects, a mandate to purchase health insurance does not parallel these other settings or markets. Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them (p. 51).
As I noted yesterday, in his reply brief to the plaintiff's Supreme Court brief against the mandate, Solicitor General Verrillli also advanced the uniqueness of insurance in general and health insurance in particular as one of two "limiting principles" ensuring that Congress would not take an upholding of the ACA as a license to impose purchase mandates at will. Insurance is essentially different:
The minimum coverage provision regulates only how participants in a market finance that participation, i.e., through insurance rather than through attempted self-insurance and financing borne by other market participants. Health insurance is not purchased for its own sake like a car or broccoli; it is a means of financing health-care consumption and covering universal risks. Gov't br. 41. Because insurance is "essentially different from ordinary commercial transactions," this Court has recognized that constitutional rulings regarding insurance regulation may be "confine[d]" to that setting....Upholding the minimum coverage provision thus would not authorize Congress to compel purchase of an end-product by a stranger to that end-product's market....
The minimum coverage provision is also different than the other insurance schemes respondents posit. States Br. 23, 47. If an individual does not have flood insurance, he cannot compel contractors to repair his flood-damaged home for free. Nor does a funeral home have an obligation to bury the indigent... (p. 19).
The language here turns the plaintiffs' favorite verb -- compel -- on its head. The uninsured effectively compel others to pay for their emergency and catastrophic care.

Unspoken amid these defensive arguments is the goal of providing the uninsured with something more valuable than a means to avoid passing their catastrophic costs on to others. Throughout the legal arguments, the uninsured are cast mainly as freeloaders, when in fact they are the primary victims of our selective system of health insurance and delivery.  Providing every citizen and legal resident with the means of obtaining health care that will preserve and advance their health is a worthy one. Yet this core Democratic goal has been rendered politically toxic in our poisonous public sphere.

More on the mandate
Jonathan Cohn tells the justices: the ACA has catastrophic coverage options
Michael Carvin misrepresented the mandate in oral argument
The ACA offers catastrophic coverage: the AP notices
The bounded, minimalist way to uphold the ACA (Marty Lederman at Balkinization)
Go tell the justices: the ACA has a catastrophic coverage option 

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