When, minutes after President Obama signed the health-reform law, 14 Republican state attorneys general asked federal courts in Florida and Virginia to declare the law’s mandatory insurance requirement unconstitutional, even conservative legal experts scoffed. Former Reagan administration Solicitor General Charles Fried, now a Harvard Law professor, told Fox News’s Greta Van Susteren that if the Supreme Court struck the law down, he would “be happy to come on this program and eat a kangaroo skin hat” he recently purchased in Australia. George Washington University professor Orin Kerr, who counseled Texas Republican Sen. John Cornyn on Justice Sonia Sotomayor’s confirmation proceedings in 2009, gave challengers a “less than 1 percent chance” of success.
Unfazed, opponents ratcheted up their court fight. Republican officials from seven additional states joined the original two suits, while private conservative advocacy groups have brought at least 17 copycat cases nationwide. Further, opponents expanded their constitutional campaign to politics and the media. On all fronts, they have generally avoided frontally challenging the nearly wall-to-wall expert belief that the reform law’s “individual mandate” to purchase insurance passes muster with governing Supreme Court precedent. Instead, they have aimed at sowing doubt about whether, even if experts are right about constitutional law as it stands, existing precedent gives the federal government too much power. Toward this end, opponents have honed a set of core buzzwords and messages designed to reframe the debate and gradually shift the political and legal consensus. By the time the cases reach the Supreme Court, reform opponents hope it will seem legitimate for the court’s conservative majority to blow off judicial restraint, blow through loopholes in existing law, and effectively rewrite it.
In keeping with this incremental strategy, opponents often frame points as questions, since the answer one elicits depends on the question one asks. Moreover, loaded questions can catch unsuspecting audiences off guard, and ultimately prove quite seductive. Thus, opponents’ favorite, incessantly reiterated verbalism frames the individual mandate as—to quote legal pundit Stuart Taylor from a recent NEWSWEEK column—“a completely novel legal issue: can Congress require millions of individuals to buy a commercial product?” But Congress, and the legal experts on whom Congress relied, would craft the basic question about the lawfulness of the mandate quite differently, as something like “Can Congress ensure that all persons have access to affordable health insurance, even if they have preexisting conditions?”
If the answer to that question is yes—as it surely is—then questions about the mandate beget the same answer, as a matter of law or common sense. This is because, without the mandate, guaranteeing affordable coverage of preexisting conditions (or other insurance reforms that the Obama administration implemented Sept. 23, such as barring arbitrary coverage “recissions” or dollar-amount caps) simply won’t work. Once insurers can no longer turn any applicants down, more healthy individuals will forego insurance till they actually get sick or injured. So premiums will rise for those still in the pool, likely leading additional healthy individuals to drop their insurance, and in turn premiums will skyrocket even further. Before Congress took up the federal bill, this “death spiral” scenario had stymied all seven states that enacted preexisting condition protections without simultaneously imposing an individual mandate: they experienced double- or triple-digit premium increases, and several faced outright collapse of their individual insurance markets.
A close second in reform opponents’ messaging hierarchy is the chestnut that the mandate regulates “inactivity” —the “doing of nothing at all” in the words of the Heritage Foundation’s white paper on the issue. A close cousin of this line appeared, among many other places, in a recent preliminary opinion by Richmond federal district Judge Henry Hudson, the judge who presides over Virgnia’s suit against the mandate. All the complex legal questions in the case, he wrote, “seem to distill to the single question of whether or not Congress has the power to regulate—and tax—a citizen’s decision not to participate in interstate commerce.”
If, indeed, that is the question, then mandatory insurance and many closely linked other provisions of the reform law with it are not long for this world, and quite possibly should not be. But is it the right question? Is it not misleading at best to portray as “doing nothing at all” individual decisions to put off buying health insurance and thereby palm off on others liability for their own future medical bills? In 2008, the total cost of treating uninsured patients was $43 billion, with an average impact on family insurance premiums of $1,100. The reform law itself characterizes the mandate as regulating “economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.” In a recently filed brief, the Justice Department called the “no activity” line “insistence that the choice of one method to finance one’s inevitable health care expenditures is ‘passivity,’ while the choice of another method is ‘activity.’ ” If the question is whether Congress can act to prevent this sort of market-timing and cost-shifting in a sector comprising 17 percent of GDP, once again, the legal and common-sense answers would seem to shift as well.
Opponents claim that requiring individuals who can afford it to carry health insurance or pay a tax penalty is “unprecedented,” totally novel from a legal standpoint and a uniquely burdensome interference with individual liberty. But functionally and in terms of its impact on individuals, the mandate is not different from, and no more a burden than Social Security or Medicare taxes. So again, the likely answer changes if the question is “Can Congress achieve universal health coverage by building on the existing public-private insurance system already in place, or must it attain this goal only by extending Medicare to all adults, or enacting a similar single-payer, government-run system?” Conservative opponents of health reform can be forgiven for betraying awkwardness when confronted with that question.
If you’re trying to sort through the debate about the constitutionality of the health-reform law, your watchwords should be “caveat emptor” no less than when you’re selecting products in the insurance market the law regulates. Before reaching answers, make sure you have carefully considered the questions.
Lazarus is public policy counsel to the National Senior Citizens Law Center and writes frequently on the constitutionality of the new health-reform law.