Yes, ObamaCare's Mandate Compels People to Buy Health Insurance

The Obama administration has repeatedly and somewhat counterintuitively argued that the individual mandate to purchase health insurance is not, in fact, a requirement that compels anyone to purchase health insurance. Arguing the case in front of an appeals court in Atlanta, Neal Kumar Katyal, the Obama administration’s former acting solicitor general, told judges that the government is “not asking people to buy something they otherwise might not buy.” 

Eventually, Katyal argued, everyone will need health care. Requiring individuals to purchase health insurance merely regulates how that care will be financed.

Katyal and other defenders of the mandate have used this idea that the provision merely regulates financing as a response to the concerns about the mandate’s novelty and the scope of congressional action it might allow. Congress already regulates the financing of health care, the argument goes; this would simply be a new way to regulate that financing. By minimizing the provision’s novelty, the law's defenders can sidestep concerns about the breadth of power granted to Congress under the Commerce Clause should the mandate be ruled constitutional.

It also masks a crucial distinction. There is an important difference between regulating commerce that an individual has chosen to engage in and compelling someone to engage in a specific form of commerce when they have not.

Yet Katyal has stuck by the assertion. As the Cato Institute’s Michael Cannon notes, Katyal repeated a similar line on NPR last week. With the mandate, “the government is regulating financing,” Katyal said. “It’s not the government coming in and saying, oh, consume this product you wouldn’t otherwise consume.”

This may come as a surprise to anyone who ends up forced to purchase health insurance under the law should it be upheld. And I think it is safe to suggest that this is not how most people understand the mandate.

At minimum, however, it is fairly clear that this is not how President Obama, who signed the law and fought for its passage, claimed to understand the mandate when he opposed it on the campaign trail in 2008. Instead, he understood it as a policy that forced people to buy a product. Indeed, that's part of why he said he opposed it. 

Criticizing Hillary Clinton for her support of the mandate, Obama said that “she believes we have to force people who don’t have health insurance to buy it.” At another debate, candidate Obama stressed the importance of understanding what it means to mandate health insurance: “A mandate means that in some fashion everybody will be forced to buy health insurance.” The government, in other words, would be asking people to buy something they otherwise would not buy.

The mandate does not merely regulate commerce—it requires it. In 2008, President Obama understood this distinction. In 2012, his administration is pretending the distinction does not exist. 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Tman||

    Cue mingey with the insane definition that it is Constitutional because-
    "it forces you to participate in a market that the government has a right to regulate" -which is fucking irrelevant.

    Up is down, black is white.

  • Joe M||

    There is an important difference between regulating commerce that an individual has chosen to engage in and compelling someone to engage in a specific form of commerce when they have not.

    Nuh uh! Just ask MNG.

  • GroundTruth||

    What a hoot watching these folks tie themselves into pretzels arguing that A is not A.

  • ||

    A politician lied? I'm shocked, shocked.

  • CatoTheElder||

    He didn't even lie. He just had more "flexibility" after November 2008.

  • ||

    The 'smart' people may have outsmarted themselves trying to weasel around the mandate's purpose: getting the young and healthy to pay the cost of covering the unhealthy and uninsured. What is the meaning of the word is afterall?

  • ||

    There is an important difference between regulating commerce that an individual has chosen to engage in and compelling someone to engage in a specific form of commerce when they have not.

    Is there? Many regulations today consist of "regulating commerce that an individual has chosen to engage in" by "compelling them to engage in a specific form of commerce".

    That's what a lot of regulation is. You want to operate a power plant? Fine. Just buy all this pollution control equipment. How is a mandate to buy safety or pollution control equipment, or whatever, not "compelling someone to engage in a specific form of commerce when they have not chosen to engage in it."

    This is totally routine. Our regulations are chock full of "mandates" to buy particular goods and services.

  • Joe M||

    Many regulations today consist of "regulating commerce that an individual has chosen to engage in" by "compelling them to engage in a specific form of commerce".

    That's regulating A by B if activity A is chosen though. ObamaCare is "regulating" A by compelling A.

  • Sevo||

    "You want to operate a power plant? Fine. Just buy all this pollution control equipment. How is a mandate to buy safety or pollution control equipment, or whatever, not "compelling someone to engage in a specific form of commerce when they have not chosen to engage in it.""

    One difference: I may decide not to operate a power plant and avoid those mandates.
    In this case, my mere existence triggers it.

  • ||

    Keep reading, gentlemen.

  • Jeffersonian||

    At least EPA regulations are equipment-neutral. If you can achieve the same quality of discharge using duct tape and cardboard tubes, you're okay. Not so Obamacare.

  • ||

    You sure you want this? A conservative congress and administration could easily remove the excluded classes that are excempt from this bill. Don't want any free-riders on this.

  • ||

    If the court upholds this bill in toto, the bill expands the power of the federal government over the states as well. Couple this with Kelo and Raich and a libertarian (?) conservative congress and president could easily undo state pollution laws that are stricter than federal law, undo rent control laws, restrictive zoning laws, state minimum wage laws, any state or local legislation or regulation that has any economic affect. The justification that all economies, local and state are part and parcel of the national economy.

    The hubris of the left is their belief things can only go one way, their way.

  • ||

    My husband, a lawyer, made the same argument you are making and I wondered why didn't the gov. lawyers use that analogy. Then it dawned on me this a.m. A person chooses to operate a power plant. A person chooses to buy a car. He can (theoretically) not use electricity, not drive a car. A corp doesn't have to provide electricity; it chooses it. My husband is a great plaintiff's attorney but I couldn't believe he could come up with an argument that a team of constitutional lawyers haven't thought of. BUT the gov is arguing that ALL people use healthcare so it is commerce that can be regulated (I think). I'd love to hear further arguments from you. I don't want this thing to fail but I do want to understand it.

  • ||

    The traditional reply is that these mandates are "conditional" - by choosing to operate a power plant, you effectively consent to the mandate.

    Aside from the fact that this is gibberish, it misses the point. The regulations require you to become active in a market that you would not otherwise be active in.

    Why, exactly, does operating a power plant confer on the government the authority to require you to buy pollution control equipment? If the government doesn't have the power to order you to buy pollution control equipment unless you operate a power plant, how can your decision to do so create the power in the government?

  • Sevo||

    "Aside from the fact that this is gibberish, it misses the point. The regulations require you to become active in a market that you would not otherwise be active in."

    Disagreed that it's gibberish; it is a specific difference.
    I'm also not arguing in support of the regulations you cite. Just pointing out that specific difference.

  • ||

    it is a specific difference

    But is it a difference that matters? Or should matter?

    If government can compel me to do X if I do Y, then doesn't that mean government has the authority to comple me to do X, regardless of whether I do Y?

    Maybe what's conditional, then, is engaging in some activity that gives Congress Commerce Clause jurisdiction. That is, Congress can only order me to buy pollution control equipment under the Commerce Clause only if I am engaged in interstate commerce.

  • Night Elf Mohawk||

    If government can compel me to do X if I do Y, then doesn't that mean government has the authority to comple me to do X, regardless of whether I do Y?

    No.

    The government can compel you to serve people regardless of race if you open a restaurant. It can't compel you to do so if you don't.

  • Sevo||

    "Maybe what's conditional, then, is engaging in some activity that gives Congress Commerce Clause jurisdiction."

    That's what I see as a 'difference'; you chose to engage in commercial activity Y, therefore congress requires you to spend money to satisfy X regulation. Again, I'm not defending that requirement.
    In the case of Obamacare, I am not engaging in A...Z commercial activity to trigger that requirement. In fact, my only option-out is suicide.
    (dammit, I hope the squirrels don't eat this one)

  • ||

    Nope. In the conditional case, the requirement to do X is justifiable as regulation of Y.

    In the unconditional case, the requirement to X isn't justifiable as regulating anything else.

  • Joe M||

    Haha, shit.

    Not to say either is okay, necessarily (although air pollution isn't so straightforward), but requiring something else seems substantively different from requiring an activity out of thin air. After all, you're not forced to pay a fee for not opening a power plant.

  • Old Salt||

    After all, you're not forced to pay a fee for not opening a power plant.

    Technically, if you pay an electric bill, then the power company's regulatory costs are being passed on to you regardless of how sane, rational, or effective said regulations are.

  • Joe M||

    Sure, but that's sliding into another area of discussion, I think.

  • Sevo||

    To continue the analogy, I've seen the claim that the mandate is equivalent to auto insurance.
    Nope. Don't operate a car, no insurance required.

  • Appalachian Australian||

    Every state lets you post a bond in lieu of insurance, which is analogous to the wealthy who don't need insurance. If your net worth is $10 million, you don't need an insurance policy with a lifetime maximum of $1 million.

  • ||

    Huh? I don't remember NYS giving that option when I was briefly insuranceless. I had to pay a rapacious per-day civil fine.

  • Sevo||

    Dunno about NY, but CA offers that alternative, and I have no problem with it.
    You engage in an activity which has the potential of causing damages amounting to X; prove you have the resources sufficient to cover that liability.

  • Appalachian Australian||

    Reminds me of the Somali legal system of xeer. Err, wait, Somalia has no laws, sorry, I just completely made that up.

  • Liberal Griefer||

    If we don't make government bigger every day, we'll be JUST LIKE SOMALIA!!!!!!!!!!!!!!!one!!!1!!!e1eventy!!!!!!!!

  • T||

    If the government doesn't have the power to order you to buy pollution control equipment unless you operate a power plant, how can your decision to do so create the power in the government?

    Obligatory: because fuck you, that's why.

  • Joe M||

    Although, if you're suggesting overturning the health insurance mandate should, by extension, overturn all regulations, I'm all about it!

  • ||

    No, you're missing the point. Requiring you to buy CO2 scrubbers if you want to operate a cola power plant is not a regulation of CO2 scrubbers, it's a regulation of power plants. The regulated activity is the one you chose to partake in, not the one the govt wants you to partake in.

  • Sevo||

    "Requiring you to buy CO2 scrubbers if you want to operate a *coal* power plant is not a regulation of CO2 scrubbers,..."
    FIFY, no snark. Just took a bit before I got it.

  • Mr. FIFY||

    It wouldn't surprise me if the EPA required soda bottlers to install CO2 scrubbers.

  • ||

    So, does this mean that hospitals can refuse healthcare if you don't show up with money or insurance? Let's do that and see if we can finally get a single payer system that the rest of the civilized world. We know how to do it -- it's called Medicare and it is very successful.

  • ||

    If the government doesn't have the power to order you to buy pollution control equipment unless you operate a power plant, how can your decision to do so create the power in the government?

    Racist.

  • T||

    Semi-OT: I'm getting sidebar ad asking me to donate to Elizabeth Warren. That's some quality targeted ads, there.

  • Appalachian Australian||

    I trust you clicked the ad. My AdWords cost me upwards of a buck per post.

  • anarch||

    Arguing the case in front of an appeals court in Atlanta, Neal Kumar Katyal, the Obama administration’s former acting solicitor general, told judges that the government is “not asking people to buy something they otherwise might not buy.” Eventually, Katyal argued, everyone will need health care. Requiring individuals to purchase health insurance merely regulates how that care will be financed.

    I knew a man who lived into his eighties and died at home, where he had lived alone. There was no medicine of any kind in his house.

  • Appalachian Australian||

    I'm pretty sure Christian Scientists would eschew all medical care.

    I know someone who would be extremely upset if any of us forced medical care on her. She hasn't seen a doctor in over a decade and pretty much has a standing DNR. (Or does drafting a DNR count as engaging in medical commerce?)

  • Tony||

    Yes, refusing to be resuscitated is doing nothing, and doing nothing is the same as doing things.

  • Sevo||

    Pretty sure this is a spoof. With all due dis-respect, shithead is never so obvious in his/her contradictions; s/he attempts to hide them in sophistry, misdirection or behind strawmen.

  • Appalachian Australian||

    As much as it pains me to say it, I miss the real Tony and the real Chad. They were actually worthy of rebuttals.

  • Sevo||

    Disagreed. Not shithead. That SOB is dishonest from end to end.
    EVERY one of his posts contained some dishonesty that needed to be ignored or called out as such before anyone could deal with an honest argument. And most often, there was no honest argument; just some logical fallacy or other.

  • Mr. FIFY||

    I don't miss Chad. I got sick of "externalities" the first time he typed the fucking idiotic, empty word.

  • ||

    So, I agree. Let's say that that woman needs to show up with docs demonstrating ability to pay or insurance at the emergency room door OR no service. Do we have a duty to treat her? Why?

  • Gilbert Martin||

    "Eventually, Katyal argued, everyone will need health care. Requiring individuals to purchase health insurance merely regulates how that care will be financed."

    Eventually I'll buy another car.
    That doesn't mean the government has any authority to require me to put up money in advance that will be put in a pot to subsidize SOMEBODY ELSE getting a car.

    Somebody should call that asshole's bluff and point out that the only way it could be considered "financing" would be putting my money into a health savings account that I own to use later for my own health care.

    Mandating the purchase of an insurance policy that has government dicated benefit levels and precludes charging risk based premiums isn't "financing" it's mandating more welfare.

  • Appalachian Australian||

    I see what you did there. So, by choosing not to purchase medical care, one has more money to spend on other things.

    And having that money (let alone spending it) qualifies as engaging in medical-related commerce.

    The administration should just pack it in and declare that by being alive, one is engaging in interstate medical commerce. Citizens are free to opt out of the mandate by choosing to become dead.

  • Sevo||

    "The administration should just pack it in and declare that by being alive, one is engaging in interstate medical commerce. Citizens are free to opt out of the mandate by choosing to become dead."
    Exactly. The opt-out is suicide.

  • Sevo||

    "I knew a man who lived into his eighties and died at home, where he had lived alone. There was no medicine of any kind in his house."

    Pretty sure this would be (improperly) dismissed as 'anecdotal', but it's not.
    The argument rests on the claim there are *no* white crows; you just offered one.
    Wanna bet that Buffett doesn't have medical insurance? If I were he, I wouldn't pay for it; he can cover any possible costs out-of-pocket.

  • Old Mexican||

    Neal Kumar Katyal, the Obama administration’s former acting solicitor general, told judges that the government is “not asking people to buy something they otherwise might not buy.”


    "And they will buy it because we, the government, already made it inevitable that they'll require it at some point! See the beauty and elegance of our argument, you mere mortals?"

  • Liberal Griefer||

    It's for the children!!!! Why do you hate children!!!!!!!!

  • shrike||

    A.B.U.

  • John Fitzgerald Kerry||

    I was for being against it, before I was against being for it.

  • Tuhreysa Heinz-Heinz-Kerry||

    Pardon my dependent husband... he's been snorting 57 Sauce off the kitchen counter.

  • Sevo||

    OK, that's a spoof handle with no down-side.

  • ||

    Are there no more Christian Scientists in this country?

    It's not really clear to me that EVERY SINGLE PERSON will need health care at some point. Oh, they may get sick, etc. but let's face it mankind lived and survived for thousands of years with pretty much home remedies.

    I man, yeah, OK, people died a lot back in those days and at earlier ages, but everybody still dies nowadays.

    The thing about Obamacare is, aside from certain favored groups (unemployed/unemployable 20-somethings, loose women who work for Catholic colleges, et al.), it's going to make it HARDER to get insurance and care.

    This plan is a failure, this president is a failure.

    Please vote against him in November.

  • ||

    He took on a REPUBLICAN plan for healthcare because he thought Republicans would support "their" plan! There are video clips of Romney everywhere extolling the virtues of such a plan.If he was Jesus Christ himself, the Repubs. would disagree with him.

  • West Texas||

    If the government is worried that paying for the healthcare of the uninsured is so damn expensive, why don't we just agree that people who can't pay for it (or find some charity) don't get it? I'm serious here.

    The market failure here is that they still get the healthcare for nothing, not the fact that they've got nothing.

  • ||

    Dude is talking a lot of smack lately isnt he?

    www.Anon-Works.tk

  • CatoTheElder||

    "The government, in other words, would be asking people to buy something they otherwise would not buy."

    The government is not asking people to buy anything; it is DEMANDING that its subjects buy an insurance product that conforms to its specifications.

    Contrary to the propaganda, PPACA does not create any right to health care services or medical insurance. Instead, it creates an obligation to purchase the government-approved insurance policy and to otherwise behave according to the dictates of the HHS Secretary.

  • ||

    You all are a random assembly of particles that just so happen to have coalesced into a human body. Your only duties are to serve the state, serve the greater good of humanity, and buy health insurance. In return you will given "free" gin and saccharine.

  • ||

    It is a tax but if the Dems had called it a tax, it never would have passed. The day is coming when healthcare costs are so high that corps will require employees to pay part of their benefits or all. That's the day it will Republicans will start taking healthcare seriously.

  • ||

    Sorry. Typo "That's the day Republicans will start taking healthcare seriously."

  • ||

    This is why I'm a liberal and why I like liberals. They are unselfish. I have no stake in this - I have health insurance, my kids have health insurance and soon I'll retire to get medicare. BUT I do care because I care what happens to "the least of these," which ironically is what Bible thumping conservatives never think about. They think, "Charities will take care of them." Right! Think of the 19th century and early 20th century. My mother picked cotton and almost starved in the 1920s and 1930s. There was no help for her empty stomach pre-FDR!

  • benji||

    So that's why you want to throw people in prison or kill them if they don't buy a product from a corporation?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement