A federal trial judge in Pennsylvania ruled Tuesday that the health reform law’s “individual mandate” is unconstitutional, becoming the third federal trial judge to strike the mandate down. At least four federal trial judges have upheld the mandate on constitutional grounds. Other trial courts have dismissed challenges to the mandate for procedural reasons.
At this point, trial court decisions involving the individual mandate are largely anti-climactic. Two federal appeals courts have addressed the constitutionality issue, reaching different conclusions (several days ago a third appeals court dismissed a challenge for lack of standing; see our September 9 blog posting on the court’s action). That split in decisions virtually guarantees a Supreme Court review of the matter, likely within the next 12 months or so.
The individual mandate is a politically charged issue, with strong arguments—and emotions—on both sides. That fact was made evident during this week’s Republican presidential candidates’ debate, when moderator Wolf Blitzer and Congressman Ron Paul engaged in dialogue regarding the mandate.
Blitzer noted that many young adults choose not to buy insurance. Who pays for the care of such a young, uninsured person, Blitzer asked, if he is seriously injured in an accident? Paul replied that “taking your own risks” is what freedom is all about. Blitzer got to the heart of the matter when he followed up, asking, “Are you saying that society should just let him die?” Paul said no, he did not advocate that.
This is the core of the individual mandate issue. Opponents argue (a) it is inappropriate as a matter of public policy, and an affront to their individual freedoms, for Congress to require Americans to buy health insurance, and (b) it is unconstitutional for Congress to do so.
Proponents counter that Americans who don’t buy insurance nevertheless have insurance, because in an emergency they won’t be turned away from a hospital; it’s simply that such individuals are not paying for their insurance, in many cases leaving it to taxpayers or those with insurance to pick up the tab for the hospital bill.
To the constitutional issue, proponents argue that this cost-shifting has an interstate economic impact on the nation, something Congress may constitutionally mitigate through legislation. As for the policy issue, proponents argue that if conservatives truly embrace notions of personal responsibility, how can they not be in favor of the individual mandate, when the mandate merely requires them to accept responsibility for insuring themselves so that others won’t have to.
So, the issue is heated on both sides. But there is a pragmatic angle to the issue as well. As we have noted in other of our publications regarding health reform, the individual mandate is essentially a quid pro quo with the insurance industry. Congress required (in the health reform law) insurers to issue policies to all applicants, regardless of health, and to cover their pre-existing conditions (the illnesses the applicant is suffering from at the time of his or her application). Insurers said, “Fine, but if we’re forced to do that, we need to get everyone in the boat…otherwise we’ll have people waiting until they get sick to buy insurance, and that’s not insurance at all.”
While we take no position here on the constitutionality of the individual mandate, one practical risk associated with the pending challenges to the mandate is that, if the challenges are ultimately successful, we won’t have “everyone in the boat” but the law will nevertheless require insurers to cover all applicants and their pre-existing conditions. That’s not a recipe for reducing the price of health insurance premiums. Even the reform law’s proponents concede as much. In briefings to several of the courts that have considered the constitutional question, the Justice Department has referred to the individual mandate as the law’s “linchpin.”