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Nothing About the Insurance Market Makes the Individual Mandate Legally Unique

Obama signs Affordable Care Act

President Obama signs the Health Care and Education Reconciliation Act of 2010. It's now up to the Supreme Court (official White House photo by Pete Souza)

Despite the administration arguing otherwise before the Supreme Court, there is nothing about health insurances that should makes it special from a legal perspective. While it is true that every market for every product is its own unique snowflake, they are all still snowflakes.

Every attempt I’ve seen by defenders of ACA to claim a mandate for health insurance is different from a mandate for any other product/service because the insurance market is special is logically incoherent. The same arguments can equally apply to thousands of products.

Brookings Fellow Henry Aaron makes one of the best attempts explaining why health insurance is somehow legally unique from other products but his argument, like all similar arguments, falls flat when held up against actual examples.

To the surprise of many, opponents of the Affordable Care Act took the broccoli analogy literally. Not buying insurance is simply inactivity, they argued. If government can prohibit this form of inactivity by forcing people to buy insurance, it can force them to buy anything, even broccoli. If Congress can prohibit such ‘inaction,’ they argued, freedom is in jeopardy. More to the point, the constitution doesn’t allow limits on ‘inactivity.’

[…]

One would expect that, on the average, those who voluntarily go without health insurance will be comparatively light users of health care. But one would also expect that some fraction of the uninsured will incur large health costs that they cannot afford to pay. Thus, letting some people decide freely not to buy insurance raises costs in two ways for those who do buy insurance. First, it removes from the insurance pool people with lower-than-average costs, thereby boosting premiums for those who do buy insurance. Second, some of those who do not buy insurance will end up using more medical care than they can pay for. Those unpaid bills will also boost costs for the insured.

Thus, the decision not to buy insurance affects the insurance market, which Congress indisputably has the power to regulate. Furthermore, repeated Supreme Court decisions have established that Congress can regulate actions outside the web of commerce that indirectly affect commerce, such as the decision by a farmer to grow wheat for his own consumption is subject to regulation under the commerce clause.

To be sure, this is the position that the government has advanced in its brief in defense of the Affordable Care Act

Nothing about this is unique to health insurance, it could be applied to a whole range of products and services.

For example, the people currently choosing not to buy gym memberships are mostly people who don’t like going to the gym. If these non-gym users, who use few gym resources, were part of the pool of people paying for gym memberships it would allow gyms to significantly lower membership rates. Thus the decision not to buy a gym membership significantly affects the market for gym memberships, workout equipment makers, personal trainers, etc… [cont’d.]

To go back to the broccoli example, my decision not to buy Pennsylvania broccoli means that it is probably cheaper for other people to buy it. This is basic supply and demand. If there was a mandate for every American to buy broccoli from Pennsylvania, that would radically change the market for broccoli, broccoli harvester equipments, land suitable for broccoli and possibly the market for greenhouse equipment used to produce broccoli year round to meet increased demand. Thus people’s decision not to buy broccoli is affecting many markets which Congress indisputably has the power to regulate.

Given the interconnection of our modern economy it is almost impossible to think of any product where the decision of millions of people to buy or not buy the product wouldn’t greatly affect its interstate market.

This is not to say there aren’t some legitimately strong legal arguments for the constitutionality of the mandate brought up by Aaron or the administration. It is possible to argue it is constitutional under Congress’ power to levy taxes, even though Congress and the President refused to call it a tax when they were drafting the law.

It is also possible to argue the mandate is legal under the commerce clause because with cases like Wickard v. Filburn and Gonzales v. Raich, the Supreme Court basically declared the commerce clause allows Congress to regulate anything so long as it may even tangentially affect the market.

What I find absurd, though, is the idea that there is any logical or legal basis for why the commerce clause would magically allow Congress to create a mandate to buy health insurance but not for most other products. There can be no doubt a mandate to buy a product would radically impact the interstate market for that product. If the health insurance mandate is constitutional due to the commerce clause then almost any mandate Congress chooses to create should be constitutional.

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Nothing About the Insurance Market Makes the Individual Mandate Legally Unique

Despite the administration arguing otherwise before the Supreme Court, there is nothing about health insurances that should makes it special from a legal perspective. While it is true that every market for every product is its own unique snowflake, they are all still snowflakes.

Every attempt I’ve seen by defenders of ACA to claim a mandate for health insurance is different from a mandate for any other product/service because the insurance market is special is logically incoherent. The same arguments can equally apply to thousands of products.

Brookings Fellow Henry Aaron makes one of the best attempts explaining why health insurance is somehow legally unique from other products but his argument, like all similar arguments, falls flat when held up against actual examples.

To the surprise of many, opponents of the Affordable Care Act took the broccoli analogy literally. Not buying insurance is simply inactivity, they argued. If government can prohibit this form of inactivity by forcing people to buy insurance, it can force them to buy anything, even broccoli. If Congress can prohibit such ‘inaction,’ they argued, freedom is in jeopardy. More to the point, the constitution doesn’t allow limits on ‘inactivity.’

[…]

One would expect that, on the average, those who voluntarily go without health insurance will be comparatively light users of health care. But one would also expect that some fraction of the uninsured will incur large health costs that they cannot afford to pay. Thus, letting some people decide freely not to buy insurance raises costs in two ways for those who do buy insurance. First, it removes from the insurance pool people with lower-than-average costs, thereby boosting premiums for those who do buy insurance. Second, some of those who do not buy insurance will end up using more medical care than they can pay for. Those unpaid bills will also boost costs for the insured.

Thus, the decision not to buy insurance affects the insurance market, which Congress indisputably has the power to regulate. Furthermore, repeated Supreme Court decisions have established that Congress can regulate actions outside the web of commerce that indirectly affect commerce, such as the decision by a farmer to grow wheat for his own consumption is subject to regulation under the commerce clause.

To be sure, this is the position that the government has advanced in its brief in defense of the Affordable Care Act

Nothing about this is unique to health insurance, it could be applied to a whole range of products and services.

For example, the people currently choosing not to buy gym memberships are mostly people who don’t like going to the gym. If these non-gym users, who use few gym resources, were part of the pool of people paying for gym memberships it would allow gyms to significantly lower membership rates. Thus the decision not to buy a gym membership significantly affects the market for gym memberships, workout equipment makers, personal trainers, etc…

To go back to the broccoli example, my decision not to buy Pennsylvania broccoli means that it is probably cheaper for other people to buy it. This is basic supply and demand. If there was a mandate for every American to buy broccoli from Pennsylvania, that would radically change the market for broccoli, broccoli harvester equipments, land suitable for broccoli and possibly the market for greenhouse equipment used to produce broccoli year round to meet increased demand. Thus people’s decision not to buy broccoli is affecting many markets which Congress indisputably has the power to regulate.

Given the interconnection of our modern economy it is almost impossible to think of any product where the decision of millions of people to buy or not buy the product wouldn’t greatly affect its interstate market.

This is not to say there aren’t some legitimately strong legal arguments for the constitutionality of the mandate brought up by Aaron or the administration. It is possible to argue it is constitutional under Congress’ power to levy taxes, even though Congress and the President refused to call it a tax when they were drafting the law.

It is also possible to argue the mandate is legal under the commerce clause because with cases like Wickard v. Filburn and Gonzales v. Raich, the Supreme Court basically declared the commerce clause allows Congress to regulate anything so long as it may even tangentially affect the market.

What I find absurd, though, is the idea that there is any logical or legal basis for why the commerce clause would magically allow Congress to create a mandate to buy health insurance but not for most other products. There can be no doubt a mandate to buy a product would radically impact the interstate market for that product. If the health insurance mandate is constitutional due to the commerce clause then almost any mandate Congress chooses to create should be constitutional.

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Jon Walker

Jon Walker

Jonathan Walker grew up in New Jersey. He graduated from Wesleyan University in 2006. He is an expert on politics, health care and drug policy. He is also the author of After Legalization and Cobalt Slave, and a Futurist writer at http://pendinghorizon.com