The Continual Complications in PPACA Coverage

SCOTUSBlog continues informative coverage of the PPACA litigation with questionable framing mixed in.

Congress — for the first time ever — has opted to command Americans to buy health insurance, or pay a penalty if they don’t.

I was not under the impression that the money taken out of one's paycheck for Medicaid (if needed; it might not be, but the same applies to other types of insurance [here government provided, but other places, maybe privately so] -- you pay money into the system that you might never use) and Medicare was voluntary, or does this "health insurance" not count?

The scary use of "command" here is notable (among other things). The person isn't put in jail or anything. They "pay a penalty" which is collected by the tax system. Why this is much different from "commanding" someone to have an energy saving device or paying higher taxes is unclear. And, "Americans" or "citizens" who merely "live" in the U.S. (see discussion, without comment, of the 11th Cir. ruling) are not the people required to do this either. Without providing numbers, but as a whole it must be something like 1/5 of the population (low income families would be the chunk here, a few percentage points coming from inmates, members of tribes and so forth ... the less than three month rule also seems potentially notable), he lists those not covered:

The mandate does not apply to people who have religious objections to it, to undocumented immigrants living in the U.S., to prison or jail inmates, to members of Indian tribes, to low-income individuals or families, to those who go without health insurance for less than three months, and to a catch-all category for individuals whom the government concludes suffer a “hardship” in getting covered by a health plan.

Maybe, we are supposed to conclude for ourselves the 11th Cir. quotations on the point are blatantly misleading, but since so many do not, it would have been helpful to not simply quote them but put forth a query how it stands up next to the fact so many who merely live here are immune from any penalty for not having insurance. And, we have this dubious statement:

The majority of the Eleventh Circuit Court, based in Atlanta — the only federal appeals court so far to strike down the mandate — spoke for most observers on all sides of the constitutional dispute when it said the requirement was totally without precedent in the Nation’s history.

No. "Most" observers do not accept that the requirement "was totally without precedent." The 1792 Militia Act was an "economic mandate" that required members of the militia to purchase various militia supplies. As here, states were intended to do much of the heavy lifting, including (with no federal Medicaid like funding involved) dealing with those too poor to purchase the supplies themselves. The cost was one reason some opposed the approach. No reference to this repeatedly cited precedent.

Citing the 11th Cir. ruling, again without comment, the previous "mandates" (which include some "economic" component, I would add) all were "duties of citizenship, each with a foundation in the Constitution itself." Since many opposed the federal draft, here argue the law has such "foundation" and protecting the national health system and helping protect the health and well being of Americans can also be a "duty of citizenship," the PPACA again need not be deemed "without precedent." Past laws that taxed those who didn't do things that burdened interstate commerce also reaffirms the point.

We are also told that the 11th Cir.

majority foresaw the prospect of a “command economy,” dictating much of how American families live their private lives. The mandate, it concluded, “is breathtaking in its expansive scope.” The “mere fact of an individual’s existence,” it commented, is not enough to make one an economic player subject to congressional control.

If a "command economy" regulation does not violate the Constitution, particularly in certain contexts such as during a war, it might be bad policy, but it is allowed. The law here (for those who are covered) says you have insurance or pay under $800 more a year in taxes. It is not "breathtaking" in scope.  It doesn't tell you what procedures to use or that you will go to prison if you don't have insurance. After listing many people not covered (not the only problem with the statement, but a big part), why, WHY, does the author blandly quote the "mere fact of an individual's existence" trope?  It is patently false.

Finally, this too is misleading:

The entire basis of Congress’s action in creating this requirement was that no one was outside the stream of commerce that constitutes the health insurance market: no matter how firmly individuals may insist that they do not need insurance, they will, at some time, need health care, according to the government’s judgment. It is only a question of who pays for it, and when, Congress believed.

We should not merely focus on this aspect. The article itself addressed the "spread the risk" concept of insurance. And, without that, the insurance market will have problems, including medical bankruptcies that burden us all. The health insurance market does not merely involve those who directly are purchasing insurance or in need of it to pay for health care. It involves everyone who is in various ways affected by such things. A business loses a worker since s/he has no health care to deal with an illness or accident to a family member and cannot work any more at that firm. Is the business truly "outside" the stream of commerce here? Do medical bankruptcies not affect those without insurance? How about if it involves unsecured debt that is owed to such individuals, perhaps one who runs a small business who has little margin of error? Something that amounts to about 1/5 of the economy is going to affect the stream of commerce in diverse ways.

The article ends:

It is apparent, from this one decision by an appellate court against the mandate, that the federal government’s primary task before the Supreme Court will be to put the individual back into the health care market, as an inevitable consumer who should not be allowed a free financial ride when, as a near certainty, he falls ill. The secondary task, it seems, will be to convince the Justices that the power at issue would go no further than health insurance regulation, so it need not be feared as a means to create a “command economy” run from Washington.

The "inevitable consumer" and "free financial ride" aspects are involved, and have bite, but is only part of the equation. The basic point is that the health insurance market (and the health care it pays for) has octopi like reach in our national economy and this legislation, including the infamous provision, is a proper regulation. This makes health insurance regulation somewhat unique, but it would be fictional that some other sort of requirement of this type (with similar mild penalties attached) might not arise at some point. The federal draft once upon a time seemed to many as unlikely too. Still, the mild nature of the requirement can be explained to show we don't have a "command economy," though curiously some seem to suggest that if we had more of one (e.g., a universal health care system paid by the government), it might be more likely to be constitutional.

Of course, it is hard to take many of them seriously. I take senior Supreme Court reporters much more seriously, particularly when (perhaps for "space restraints") they mislead in the process.  Do we really need this sort of thing to get useful (and it does have much beneficial use) analysis of this sort?