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A Further Comment on the Health Reform Lawsuits

In a previous posting the legally flawed and uninformed decision of Judge Roger Vinson was noted. Now Virginia Attorney General Ken Cuccinelli has filed a brief asking the 4th Circuit Court of Appeals to go further than his judge, Judge Henry Hudson, did and declare the entire act unconstitutional, as Vinson did.   This action removes any doubt that this exercise has precious little to do with the Constitution or “states’ rights” but is merely an egregiously partisan political ploy.  From the right-wing American Enterprise Institute, “why so many conservatives had championed an individual mandate─until Obama and Democrats did so.  The most efficient way to create a different, more robust and effective marketplace in health insurance, and ultimately in the delivery of health services, is to expand the risk pool by making it universal.”

In the ruling in McCulloch v. Maryland, Chief Justice John Marshall wrote about the Necessary and Proper Clause: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the

Constitution, are constitutional.”  The Supreme Court, Chief Justice Roberts presiding, affirmed the scope of Congress’ authority 191 years later in the Comstock case.

Marshall further wrote about the commerce power in Gibbons v. Ogden: “This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than those prescribed in the Constitution...the sovereignty of Congress, though limited to specified objects, is plenary as to those objects.” 

Clarence Thomas, who will definitely vote against the ACA but should recuse himself, in his dissent with Scalia, to the Court’s refusal (7 to 2) to hear the case, Alderman v. US, opined, “Today, the court tacitly accepts the nullification of our recent commerce clause jurisprudence.” And “This court has a duty to defend the integrity of its precedents.”  One must judge that he has forgotten his Citizens United vote and ignores the precedents above.  It is noted that the argument of the critics of ACA may be politically advantageous but is morally and intellectually inconsistent at best.

Jost writes about Vinson’s opinion invalidating the ACA and about the regulating of “inactivity.”  The author notes that Vinson recognized that there is no fundamental right not to purchase health insurance.  He concludes, “But the line he [Vinson] draws is not grounded in, and ignores the reasoning of, governing Supreme Court precedent.”

Gruber states, “The Affordable Care Act seeks to improve our nation’s health system; Judge Hudson’s decision makes it worse.”  Oberlander notes, “Among [opponents of the ACA] pro-mandate arguments about personal responsibility gave way to concerns over individual liberty and the political priority of handing the Obama administration a defeat.”

For a timely review, “There is no doubt that the Affordable Care Act [minimum coverage provision] fits within these enumerated [Constitutional] powers in three ways, as this brief will demonstrate.”

Jonathan Gruber, in his essay, “Health Care Reform without the Individual Mandate,”

concludes, “ alternative to the individual mandate can cover more that two-thirds as many uninsured as the Affordable Care Act...” ; “no alternative to the mandate saves much money,”; “any alternative imposes much higher costs on those buying insurance on the new health insurance exchanges.”

The ACA was modeled in large part on the Massachusetts health reform enacted in 2006.

A brief examines “Myth vs. Fact: Health Care Reform in Massachusetts.”  It answers the distorting of the facts by opponents of the ACA.  A Perspective in the New England Journal of Medicine also covers “The Importance of the Individual Mandate—Evidence from Massachusetts.”  The authors conclude, “...mandating coverage might well play an even greater role in encouraging the health to participate in health insurance markets nationally that it has in Massachusetts.”  Len Nichols agrees, “in the end, ‘I think that the mandate is the best tool to use,’ to get people covered and make private insurance work.”

The authors from the Urban Institute note in their brief that “few provisions of the ACA

have been as controversial as the individual mandate” and “compare the ACA to a scenario in which the individual mandate is eliminated, but the other provisions of the ACA are unchanged.”  Opponents see it as a major cost to families who would rather spend their income elsewhere and a significant threat to individual freedom. 

“The bottom line is that the individual mandate is an essential component of  the overall package; working with the Medicaid expansion, exchanges, premiums subsidies, and market reforms to achieve the goal of greatly reducing the number of uninsured.”

“There would be 17.8 million more people left uninsured if the mandate were eliminated, with relatively little reduction in government spending.  Premiums for individuals and employers would escalate, and insurance markets would become unstable.”

Uncompensated care costs are much higher without the mandate suggests that populations that would be uninsured without the mandate are essentially free riders irresponsibly shifting the costs of care they inevitably need onto the rest of society.

This is the last of the posting series on the individual mandate.  Updates will be posted as the litigation proceeds.


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