Obama Administration Lawyer Dodges Question About Limits on Congressional Power, Claims Health Insurance Mandate is Not A Requirement to Purchase Insurance


It's a non-mandatory mandate.

At a Wednesday hearing in Ohio on the constitutionality of ObamaCare's individual mandate to purchase health insurance, a judge asked an Obama administration to define the limit of Congressional power under the Constitution's Commerce Clause. From The New York Times:

One judge, James L. Graham, pressed that question on Wednesday with Neal K. Katyal, the acting United States solicitor general, who is defending the law for the Obama administration.

"Where, ultimately, is the limit on Congress's power?" the judge asked.

Mr. Katyal responded that the government had never suggested that there were no limits.

"Where are they?" Judge Graham continued. "I want to find them."

I wish Judge Graham good luck with his quest, but I don't expect he'll have much success. He may want to find and define the limits of congressional power, but apparently the Obama administration doesn't. Rather than answer Graham's question directly, the lawyer arguing the case for the mandate instead made the odd claim that the law's individual mandate to purchase health insurance coverage is not, in fact, a requirement to buy health insurance coverage. The NYT continues: 

Mr. Katyal then argued that the law's insurance mandate, which takes effect in 2014, does not so much require individuals to buy coverage as it does regulate the way they pay for health care they will inevitably consume. Without the mandate, Mr. Katyal said, the law's requirement that insurers provide coverage to all applicants, regardless of their health status, would simply encourage people to buy insurance after they got sick.

"Congress is not regulating the failure to buy something, but the failure to secure financing," Mr. Katyal said.

This isn't the first time the administration has attempted to characterize the mandate as something other than a requirement to buy insurance. In May, a lawyer for the White House told a different judge that the mandate is "not asking people to buy something they otherwise might not buy." This latest attempt to redefine the mandate as something other than a mandate seems rather tortured, but given the Obama's long history of flip-flops on the mandate, it is perhaps not surprising that the administration is now trying to pursuade judges that a provision requiring the purchase of health insurance is not really a requirement to purchase insurance at all.