Obamacare Goes To Court, Ctd

Mar 21 2012 @ 5:36pm

Marty Lederman argues that the legal debate over the healthcare mandate can't be separated from the rest of the healthcare bill:

We did not have a decades-long, contentious national debate about whether to impose a requirement that individuals maintain health insurance. That great debate, and the ACA that Congress enacted, were centrally about how to ensure that all individuals could afford health care and, in particular, how to create a private, market-based insurance mechanism to achieve that objective, one that (like employer plans and Medicare) does not discriminate against individuals based on their medical conditions or history.

As such, the Community Rating and Guaranteed Issue provisions are indeed the central, primary provisions of the Act—as they are in the laws several states have enacted in attempts to accomplish those same ends. What the experience of those states demonstrated, however, particularly in contrast with the Massachusetts experience, is that those core provisions could not work—indeed, they would be counterproductive to the ends the legislature intended—if not accompanied by a requirement to maintain insurance before one develops exorbitantly expensive health care needs. To suggest that Congress enacted the Community Rating and Guaranteed Issue provisions in order to “expand its constitutional authority” to enact section 5000A [ie the health insurance mandate] is therefore a basic cart-before-horse error, a fundamental misunderstanding of the ACA and its history

Earlier coverage of the upcoming court case here and here.