Reflecting on the Health Care Debate
I’ve been slowly getting up to speed after my wonderful vacation in Israel, and jumping right into the health care debate at the Supreme Court seems like just as good a place as any.
The justices have been focusing on whether government has the power under the Commerce Clause to require individuals to purchase health insurance or else face penalties collected by the IRS under the PPACA (the Patient Protection and Affordable Care Act of 2010).
The oral arguments yesterday focused on this debate, and this got me wondering.
What happens if the Supreme Court strikes down the individual mandate provisions because it is Congressional overreach.
Could the same line of reasoning be used to strike down the abortion “slut shaming” restrictions that several states have floated that would require invasive and often unnecessary and expensive ultrasound procedures before a woman could obtain an abortion. The whole notion of the transvaginal ultrasound has been to throw up another restriction and roadblock preventing women from obtaining abortions, but if we follow the Court’s potential reasoning against the individual mandate, the ultrasound provisions could be struck down along similar reasoning.
The big difference, however, is that it would be the liberal branch of the Court that would pose the argument, not the conservatives that are potentially looking to kill the individual mandate provisions.
After all, in both instances, we’re talking about requiring an individual to submit to fees/costs that they would not otherwise have to but for government action and intrusion into health care delivery/funding.
Frankly, the US Constitution does give Congress wide latitude to administer and direct interstate commerce under Article 1, Clause 8, and health insurance is a huge interstate industry. Facially, the individual mandate is Constitutional on those grounds, but acts as a tax, not a fee as the government has argued. That is a significant distinguishing characteristic between the abortion debate and the health care debate.
But getting back to the health care debate, if the individual mandate is struck down, it doesn’t mean that the entire health care package would be rendered unconstitutional. If one section is rendered unconstitutional, the rest of the package would remain valid and enforceable because the various provisions are severable. However, as I’ve noted previously, it would blow a hole in the revenue measures funding other parts of the package. It could mean that Congress and the states would have to come up with new funding sources to cover areas such as preexisting condition requirements. That’s a huge potential mess, particularly in an election year when everyone is angling for votes.
While some elements of the health care plan have already taken effect, the individual mandate kicks in in 2014, and the tax on Cadillac plans hits in 2018.