Constitutional Law

Obama Administration Lawyer: Health Insurance Is Neither Shoes Nor Broccoli. Good to Know!

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According to an Obama administration lawyer, you don't have to worry about the precedent set by ObamaCare's individual mandate to purchase health insurance. The government isn't going to make you buy vegetables or new cars. After all, with the mandate, the government isn't really forcing you to buy a "product," because insurance is just a way of financing health care. 

Nope.

From Bloomberg's report on the hearing regarding the health care law the took place in Florida earlier today:

[U.S. District Judge Roger] Vinson asked [lawyer for the states David] Rivkin whether the government's theory would allow regulation of any behavior with an economic impact.

"They can decide how much broccoli everyone should eat each week?" Vinson asked.
"Certainly," replied Rivkin, an attorney in the Cleveland-based law firm Baker Hostetler LLP.

"We've always exercised the freedom whether we want to buy or not buy a product," Vinson told the Obama administration's lawyer.

[Obama lawyer Ian] Gershengorn said health insurance is "a financing mechanism," not a product. "It's not shoes," he said. "It's not cars. It's not broccoli."

I am glad to see that the government's fine lawyers can make these sometimes difficult distinctions. But the issue here is not whether insurance is a financing mechanism or a physical good like shoes or vegetables. The issue is whether under the Constitution the federal government can compel an individual to participate in a private market transaction—purchasing health insurance from a private company—in which the individual had not otherwise chosen to participate.

Still nope.

Moreover, if it's really just a revenue-raising mechanism, a way for the government to pay for health care, then aren't they saying that the insurance premiums paid to health insurance companies actually taxes? This is different from the administration's argument that the penalty for not complying with the mandate is a tax. Instead, they're effectively describing the premiums themselves as taxes—financing mechanisms that the government uses to pay for care.  

Not really getting it, are we?

But if that's the case, shouldn't the CBO have scored the total cost of these premiums—the cost involved for everyone to purchase insurance? That wouldn't be unprecedented. One of the things that  helped kill HillaryCare in 1994 was a decision by the Congressional Budget Office to score the cost of requiring private-sector employers and individuals to purchase insurance. Each and every one of those mandatory premiums was added to the cost, revealing just how expensive the scheme was. 

But thanks to updated scoring guidelines, CBO didn't score the cost of insurance purchases this time around. And, as Cato health policy analyst Michael Cannon explained last year, that helped hide more than a trillion dollars of the true total cost. But take heart: At least the federal government is not forcing anyone to eat broccoli. Yet.