The red herring that could kill Obamacare

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If the U.S. Supreme Court overturns the individual mandate in President Obama's national health care law, it will be because one of the central justifications for it was exposed as a red herring.

Both in the political arena and in court, the Obama administration has defended its mandate forcing individuals to purchase health insurance by arguing that when uninsured people show up at emergency rooms, they impose a cost on society. As described in the legislation, the mandate is merely an "individual responsibility requirement."

In reality, the mandate has always been about forcing healthy people into the insurance pool, to offset the distortion in the market created by the related provision requiring insurers to cover those with pre-existing conditions.

Tuesday's oral arguments on the constitutionality of the mandate illuminated this better than ever before.

Mike Carvin, who represented the National Federation of Independent Business before the court, explained that the uninsured and those who show up at hospitals without paying are different populations.

"It is clear that the failure to buy health insurance doesn't affect anyone," Carvin said. "Defaulting on your payments to your health care provider does. Congress chose, for whatever reason, not to regulate the harmful activity of defaulting on your health care provider."

This could be a key consideration for Justice Anthony Kennedy, who is widely seen as the swing vote in this case, in which NFIB and 26 states led by Florida have challenged the mandate. During oral arguments, Kennedy seemed to accept the argument brought by opponents of the national health care law that the mandate was unprecedented, saying that it "changes the relationship of the federal government to the individual in a very fundamental way." His comments also suggested he was concerned with whether there could be limits on federal power if the mandate were upheld.

But Kennedy also showed some sympathy for the argument that somebody who chooses not to purchase insurance "is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries."

That plays into the government's attempt to convince the court that health care is "unique" because eventually, everybody has to consume it, and therefore they are all engaging commerce that opens them up to congressional regulation.

Carvin, however, ably responded to Kennedy: Not only is government forcing young people to enter the market for insurance, but "they're prohibiting us from buying the only economically sensible product that we would want, catastrophic insurance."

Chief Justice John Roberts, in questioning Obama's Solicitor General Donald Verrilli, made a similar point -- that the mandate goes far beyond merely requiring the purchase of emergency services that everybody may one day need, and instead forces individuals to purchase comprehensive policies.

Roberts remarked to Verrilli that "the policies that you're requiring people to purchase ... must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment ... or pediatric services, and yet that is part of what you require them to purchase."

Had the health care law really been about preventing people from showing up at emergency rooms without paying, Congress could have approached the problem in a more targeted way. But the clear point of the mandate was to force individuals to participate in a market they wouldn't otherwise participate in. The purpose is to subsidize insurance companies so they can provide services to another set of individuals.

The exposure of this reality could be the final nail in the coffin for Obama's mandate.

Philip Klein is senior editorial writer for The Examiner. He can be reached at

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