Mandate Madness

Richard Cordray and Tom Miller, attorneys general for Ohio and Iowa, respectively, have an op-ed in Politico explaining why they've chosen not to file suit against ObamaCare, and why they don't buy arguments that the individual mandate to purchase health insurance is unconstitutional. It's not even remotely convincing. They write:

Health care now accounts for one-sixth of our gross domestic product. The costs of health insurance pose fundamental economic challenges to the competitiveness of our American common market. We need only look at the existing Medicaid and Medicare programs to see that this issue is national in scope.

This tells us exactly nothing. Federal programs like Medicare and Medicaid are, well, federal programs; of course they span state boundaries. But that's not the issue. Nor are critics claiming that "health care," broadly defined, is not national in scope. The issue is whether the individual mandate is justifiable under the Constitution's Commerce Clause, which gives Congress the power to regulate interstate commerce.

They go on:

The "individual mandate" now drawing so much attention mimics a law already on the books in Massachusetts—a law broadly accepted and never invalidated by the courts.

And there is a good reason for that requirement. When an uninsured person ends up in an emergency room needing urgent and expensive treatment, someone has to pay for it—through either higher premiums or higher taxes—and "we" are that someone.

Once again, this tells us nothing. Again: The Commerce Clause deals with Congressional power to regulate interstate commerce. So a mandate that applies within a state is entirely beside the point.

As is uncompensated care. Even if you believe that uncompensated care has interstate effects, it doesn't provide a rationale for a mandate because not everyone who declines to purchase insurance eventually seeks uncompensated care. The lack of insurance itself is still not an interstate transaction. (And while we're at it, uncompensated care is less of a problem than many reformers seem to think.)

They continue:

That is also why state laws require many millions of Americans to have car insurance—a few irresponsible citizens should not be allowed to heap the costs of their behavior on the rest of us.

Once again, car insurance mandates are state laws, and therefore beside the point. Car insurance is also required only for those who want to drive, not in order to live. Next?

Nobody can seriously argue that the health care industry operates only in "intrastate" commerce and that the mandate provisions in this bill cannot be effectively disentangled from the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system.

As far as I'm aware, no one is arguing that the health care industry, as a whole, "operates only in intrastate commerce." That's because whether or not it's true, it's not the relevant question. The question is whether the someone who does not purchase health insurance is engaging in a transaction that meets the legal definition of interstate commerce. How can not buying something qualify as interstate commerce? That's a question that Cordray and Miller never really address.

The best case they make (it's a low bar) is that "if the commerce clause authorizes Congress to prohibit the cultivation of marijuana for personal medical use because it has economic effects, as the Supreme Court ruled in Gonzales v. Raich, then surely it authorizes Congress to regulate health care." But that case, which Reason Associate Editor Damon Root has described as "a disastrous and deeply flawed ruling," is hardly the sort of ruling anyone should celebrate. Cordray and Miller may be right that challenges to the individual mandate don't have much chance. As I've written elsewhere, I suspect challenges to the individual mandate won't survive Supreme Court challenge. But they doesn't mean they shouldn't, or that Cordray and Miller's half-baked case is the least bit convincing.

On a final note, it's interesting that they compare the mandate to the draft. The CBO, in describing the mandate as "an unprecedented form of federal action," also said that the closest precedent for the mandate was the draft. If that's the route mandate supporters want to go, that's fine by me. But "the mandate—it's just like the draft!" doesn't strike me as the sort of messaging that the public is likely to eat up.

Jacob Sullum wrote about the crazy constitutional logic of the individual mandate here. Damon Root noted one legislator's lack of concern for the constitutionality of the mandate here and looked at how the mandate has revived debates about the Commerce Clause here.