The Individual Mandate and the Health Care Reform Law

I spent the first twenty years of my professional life in the courtroom.  I’ve spent the past ten years in health care.  So, I have followed closely the arguments in the US Supreme Court as it decides the constitutionality of federal health care reform.  Health Care Reform DebateAs I talk with doctors, neighbors, and Rocky Mountain Health Plans members about this high-profile case, I am struck by the many questions and diverse opinions that folks have.  So, I thought I might access both wings of my background and try to add some light, not heat, to the discussion.

It’s important to realize that the Supreme Court is not going to vote on this case like a legislature would.  The question for the Court is NOT whether health care reform is a good policy; the question is actually not what Congress did at all, but whether Congress has the power under the Constitution to do it the way it did.

You see, the Constitution was written to protect the rights of citizens by limiting the powers of government.  To that end, the Constitution gives specific functions (“enumerated powers”) to the President, to the Congress, and to federal courts.  The Constitution reserves everything else for the states.  These federal powers are pretty broad, but they are not unlimited.  And judges and lawyers have been arguing over the limits for more than 200 years.

So, the issue before the Supreme Court is not whether the federal law is good or bad, it is whether Congress has the constitutional authority to require Americans to buy health insurance.  That is, to enact an “individual mandate” for each of us to have insurance.

But why is that even an issue?  Well, with 18% of the country uninsured, Congress wanted to require all health insurance companies and health plans to issue an insurance policy to any person who wants one.  And that’s part of the law.  Most of us think that’s a good idea, and no one is challenging that.  But the problem is that if everyone can get an insurance policy upon demand, why would anyone buy insurance before they need it?  Think about this a different way:  if you could buy automobile insurance AFTER you had an accident, why would you buy a policy – and pay premiums — beforehand?  On the other hand, if the only people with policies are those who have already incurred major expenses, then the cost of the policy becomes unaffordable.  The same is true with homeowners insurance:  you can’t insure your home AFTER it has caught fire.

So, too, with health care:  if the only people buying health insurance are the folks who are already sick, it simply won’t be affordable.

So, Congress decided to require everyone to have a health insurance policy, including people who are not yet sick or injured.  This is not a new public policy.  It was first raised by President Richard Nixon in the 1970s.  Massachusetts has required this for several years.  Hawaii has required that businesses provide health insurance for their employees for decades.  So, why is this particular Act of Congress being challenged in the Supreme Court?  Well, although everyone accepts that states could require an individual mandate, the question is whether the Constitution gives Congress the power to do that.  Sometime this month, the Supreme Court will let us know.

(This is the first of three articles discussing Health Care Reform and the Supreme Court. Please enjoy the second article, as well:


About the Author:

Steve ErkenBrack currently serves as President and Chief Executive Officer of Rocky Mountain Health Plans. Prior to assuming this position, he served as Vice President of Legal and Government Affairs for the organization since 2002.

For more than twenty years, Mr. ErkenBrack worked as an attorney with an emphasis on health care, civil litigation, and government affairs. Mr. ErkenBrack maintained a private practice with offices in Grand Junction and Denver, and served six years as Mesa County’s elected District Attorney and four years as Colorado’s Chief Deputy Attorney General. He is admitted to practice before the United States Supreme Court.


One Response to The Individual Mandate and the Health Care Reform Law

  1. Pingback: The Health Care Reform Law and the Individual Mandate: Possibilities for the Supreme Court’s Decision | RMHP

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