Constitution

Defenders of Mandatory Health Insurance Provision Still Arguing That It's Not a Purchase Requirement

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Obamacare's requirement to purchase health insurance—the individual mandate? It doesn't really compel anyone into commerce. That's what the government is still claiming in its defense of the mandate, anyway.  

During Supreme Court arguments this morning, Solicitor General Donald Verrilli resisted the charge that the individual mandate to purchase health insurance was creating commerce—and is not actually a purchase requirement.

Asked by Justice Anthony Kennedy whether it is permissible to "create commerce in order to regulate it," Verrilli responded: "That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis." Instead, he argued that "what is being regulated is the method of financing health—the purchase of health care." Later he made a similar claim: "This is not a purchase mandate," he said. "This is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming…or inevitably will consume."

In defending the mandate, Verrilli is representing the Obama administration's position that the mandate is constitutional. And he is making an argument similar to arguments made in lower courts. It's still not very convincing. And it doesn't match how President Obama talked about the mandate just a few years ago. As I noted yesterday, on the campaign trail in 2008, Obama, who opposed the mandate at the time, explained the mandate differently on several occasions. Obama explained Hillary Clinton's support of the mandate by saying that "she believes we have to force people who don't have health insurance to buy it." He also stressed the importance of understanding what what a "mandate" meant for individuals: "A mandate means that in some fashion everybody will be forced to buy health insurance." The key phrase here is "forced to buy," which makes it sound an awful lot like the purchase mandate that Verrilli claims it is not.