More on the Individual Mandate

(By Andrew MacKie-Mason)

I return for another segment on the health care reform bills that recently passed Congress and were signed into law by President Obama. Today I'll deal specifically with the so-called "individual mandate," which imposes a restorative tax on people who self-insure rather than purchasing a sufficient health insurance plan.

As I've explained before (you can see all of my health care coverage here) the "individual mandate" is really a tax that offsets the cost to society of increased medical charges, trips to the emergency room, for people who do not buy health insurance. The tax will also incentivize people to not try to game the system by waiting to buy insurance until they get sick.

David Kopel at the Volokh Conspiracy has two main points in his attack on the restorative tax/individual mandate: first, that it violates the principles of federalism; second, that it surpasses Congress' authority under the Commerce Clause.

I am unconvinced by the second argument (and I think that Kopel severely undermines it towards the end of his post.) I'll get to that in a moment, but first I am completely confused by the first claim.

How does the tax/mandate relate to federalism? Federalism, remember, is the principle of separation of state and federal powers as a way to limit the authority of the national government. When the federal government mandates health insurance, what power does that deny to the states? I can perhaps see an argument against the mandate/tax under a theory of individual rights, but state rights and the federalism system? I just don't see it. If you think that the mandate interferes with a state power, let me know in the comments.

As to the second argument, I think Kopel is misplacing his attack. While I still think that the mandate/tax is covered by both Congress' Commerce and Tax powers, it is not necessary to reach that question when the mandate is covered so clearly under Congress' Necessary and Proper powers (as I've said before.)

Kopel closes his article by admitting that the mandate is central and necessary to the rest of the health care reform effort:

But the main provision of Obamacare–turning private insurance companies into ultra-regulated public utilities–makes no sense without the individual mandate; it would not have been enacted without the mandate, and it is not severable.

Thus, it is impossible to attack the individual mandate until one finds those other provisions ("turning private insurance companies into ultra-regulated public utilities," as Kopel puts it) unconstitutional. If Kopel or others want to pursue that line of reasoning, all power to them: but I at least expect them to be honest about it. You cannot attack the individual mandate as a means of toppling the rest of the bill, when the existence of the rest of the bill depends upon the individual mandate. Kopel's strategy is an example of circular reasoning at its greatest.

One final challenge to Kopel and all others on his side of this debate who wish to be considered bona fide intellectual opponents rather than people out to score cheap political points: stop calling health care reform "Obamacare." The bill was not written by the Obama administration (unlike a lot of major legislation coming out of administrations of both parties that don't get such pejorative titles) and almost three hundred elected officials, not just President Obama, expressed their support for the bill. If you resort to calling it "Obamacare," it tends to suggest that you don't have any substantial criticism to offer.