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:

You must insure your vehicle (of life)

In  arguments about the Constitutionality of the individual mandate in the Affordable Care Act, proponents have pointed out that the law obligates car owners to buy auto insurance, because the costs incurred and inflicted by uninsured drivers would be absorbed by the state.  Opponents have countered that no one is forced to own a car, and hence the state does not force us to buy car insurance. The ACA, by contrast, mandates that everyone buy health insurance, regardless of any prior economic decision.

There is a "vehicle" that each of us owns, however: our bodies. And while we don't "choose" to own them, we do choose to maintain them.  If we don't insure, we self-insure -- that is, make what provision we can to pay for the health care that we will inevitably consume.  But the self-insured rely on a massive reinsurer or stop-loss insurer whom they don't pay: the state. Federal and state law decree that no one may be denied care.  Hence failure to carry health insurance is an economic decision that affects the larger community. "Self-insuring" constitutes economic activity that may be regulated by Congress.

That is the thrust of the 2-1 majority decision in the U.S. Court of Appeals, 6th Circuit, upholding the individual mandate in Thomas More Law Center v. Obama.  Timothy Jost explains that Judge Boyce Martin, writing the majority opinion, redefined the question of whether the mandate regulates "inactivity" as opposed to economic activity:

Judge Martin contends that nearly every individual in the United States consumes health care, and thus must decide whether to purchase insurance or to self-insure.  Self-insuring is no less an economic activity than purchasing insurance.  Self-insuring results, however, in a substantial cost-shift when those who choose to self-insure cannot in fact cover the cost of their care.  For 2008, $43 billion dollars worth of care was passed on by those who chose to self-insure to others.  Thus self-insuring has a substantial impact on interstate commerce.

In fact Judge Martin also asserted that there is nothing in the Constitution or case law to prevent Congress from regulating 'inactivity" if the so-called "inactivity" affects interstate commerce:  "the text of the Commerce Clause does not acknowledge a constitutional distinction between activity and inactivity, and neither does the Supreme Court" (p. 23).    

That said, Martin also argued positively that the individual mandate "regulates active participation in the health care market" (p. 26, my emphasis).  Here again, the concept that those who do not buy health insurance effective self-insure is key: no one, insured or not, is inactive in the health care market; insurance determines who pays; and those who self-insure in aggregate pass their costs on to the insured.  Those who self-insure do so "cognizant of the backstop of free services required by law" (p. 19).