April 1, 2012 by David K. Sutton
Does The ‘Individual Mandate’ Argument Boil Down To Semantics?
Opponents of the individual insurance requirement (individual mandate) within the Affordable Care Act (Obamacare) argue that it is government overreach and unconstitutional. But is the individual mandate any different from other government mandates? The government already mandates many things – just within the realm of health care – and in some cases these mandates result in ‘many’ subsidizing the costs of a ‘few’.
There’s a Medicare payroll tax on workers and employers, for example, and a requirement that hospitals provide free emergency services to indigents. Health care is full of government dictates, some arguably more intrusive than President Barack Obama’s overhaul law. It’s a wrinkle that has caught the attention of the justices.
There is of course a few differences between the individual mandate Medicare.
First, Medicare withholding from payroll is clearly defined as a tax while the individual mandate is not. I argue the individual mandate is still a tax because it is collected by the Internal Revenue Service (IRS) but nobody (including the Obama administration) is attempting to make this case. Instead, they are arguing that the individual mandate falls within congressional power to regulate inter-state commerce.
There’s no question the Medicare payroll tax is a government mandate, said Mark Hayes, former chief health counsel for the Republican staff of the Senate Finance Committee. But he makes a distinction between the payroll tax and the individual health insurance mandate in Obama’s health care law. Congress used more clearly defined constitutional powers when it created Medicare. “The power to tax and the power to spend,” Hayes said. “Here, with the individual mandate, it’s a different question — regulating interstate commerce. This is a novel question from a legal standpoint.”
Second, Medicare is a government insurance program while the individual mandate requires the purchase of insurance from a private (many times for-profit) health care insurer. This distinction is actually one of the reasons why many liberals have a problem with the individual mandate. When you see the various polls showing 2/3 or 3/4 of the population opposed to the individual mandate you should not assume it’s because everyone is in unanimous agreement. Some people are against it because they are against Obama. Some are against it because they see it as a breach of their individual liberty. Still others (typically liberals) are against it because they are against giving more money to a broken system that is way too expensive because of the profit motive. Many liberals see private insurance as an unnecessary ‘middle-man’, only there to make a profit while deciding what is and isn’t covered.
“It’s so crazy to think that a society that has Social Security and Medicare would not find this (law) constitutional,” said MIT economist Jonathan Gruber, who advised both the Obama administration and Massachusetts lawmakers as they developed the state mandate in the 2006 law that Republican presidential candidate Mitt Romney championed as governor. “The payroll tax is worse than the mandate, because that is a program where we take your money and there is no ability to get out of it,” Gruber said. Citizens can avoid the health insurance mandate by paying a penalty to the Internal Revenue Service.
So does this argument boil down to semantics? It will be up to nine Supreme Court justices to decide, not society.