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Individual Mandate

By Dr. Clark Hinderleider

In our previous posting we spoke about the litigation involving the PPACA and, specifically, the individual mandate, which will be the subject of our following postings.

Donald M. Berwick, M.D., M.P.P., Administrator of CMS, testifies, “The

Affordable Care Act includes unprecedented new tools that will enable us to reinvigorate our nation’s focus on the quality, value, and outcomes of care, and help the public and private sector produce a new system that is better for patients, families, communities, and health care workforce.”

As part of the Patient Protection and Affordable Care Act, P.L. 111-148, Congress enacted an “individual responsibility requirement,” a provision compelling certain individuals to have a minimum level of insurance (i.e., an “individual mandate”).  Those who fail to do so are subject to a monetary penalty, administered through the tax code. 

In August the voters in Missouri approved a measure that prohibits the enforcement of the individual mandate and other provisions of the health reform law.  Other states, as Georgia, Idaho, Louisiana, and Virginia, have passed similar state laws.  Voters in Arizona and Oklahoma approved constitutional amendments with this objective.  Eric Novack, an orthopedic surgeon, was a leader in the Arizona drive for the proposition.  A like attempt in Colorado failed.

Evidently, the proponents of such exercises have not read and understood the US Constitution, which contains the Supremacy Clause.  This posturing is merely a political gesture, misleading voters to believe that such amending of the state constitution can allow them to ignore current, valid federal law.  Surely, the US Supreme Court will rule on the constitutionality of the law by 2014, and these uninformed voters will not impact national law.

It should be noted that the Court did rule on 8 November 2010 that the Court would not hear a challenge to the PPACA brought by Steve Baldwin and the Pacific Justice Institute, California, which had hoped to get a review before the matter was fully litigated.  The petition, regarding the individual mandate provision asked whether “… (the mandate) exceeds the Congress’ power under Article I of the Constitution by regulating and taxing a citizen’s decision not to participate in interstate commerce (in other words—decision not to purchase health care insurance).”

One notable piece of information was produced by this event: Justice Clarence Thomas, whose wife, as the head of Liberty Central, is an outspoken opponent of any health care reform legislation, participated in this decision.  This begs the question: should he recuse himself, as the political activities of his wife are seemingly a conflict?  However, Justice Thomas, who may have committed perjury in his confirmation hearings [see J. Alter, “From Cold War to Steamy Sex,”Newsweek, 9 July 2001], might not be troubled by this apparent ethical lapse.

It is most important to recognize and to remember that this effort by the opponents of health care reform has essentially nothing to do with constitutional law and everything to do with partisan and divisive political ploys. One should also note that the most recent Pew Research Center survey shows that 48% are happy with the Republican win and 34% are not; 41% approve of the Republican policies and future plans while 37% disapprove.  A commentator characterizes these pluralities as “far-right constituents who prefer constant paralysis to compromise-built progress.”

On 19 March 2008, the National Federation of Independent Business held a forum about individual mandates and stated that it “has not taken a position on the individual mandate.” and that is “why for us at NFIB it’s so important to hear divergent views.”   Further, “Today we’re fortunate to have convened four nationally recognized healthcare policy experts.”  One of whom, Sherry A. Glied, Ph.D., Professor and Chair of the Department of Health Policy and Management, Mailman School Public Health, Columbia University, did state that mandates “reduce the public cost that is necessary to get coverage nearer to universality…it takes a lot of money to get uninsured people to voluntarily take up coverage.” It must be concluded that, at some point, it became neither important nor fortunate, as NFIB joined the Florida lawsuit.

Mariner, et al., discuss the tactic of involving the federal courts in a contention which the opponents of health care reform have already lost once.

Cigna CEO David Cordani and Aetna President Mark Bertolini “don’t think it is in our society’s best interest to expend energy in repealing the law” and the opponents’ pledge “to take steps toward repealing the reform law or withholding funding for it could lead the healthcare industry to ‘a bad place.’”

J. Gruber in his analysis about the economic and societal costs of partially repealing the ACA concludes that “Removing the Affordable Care Act’s mandate would eviscerate the law’s coverage gains and greatly raise premiums.”

The American College of Physicians, the largest medical specialty society in the United States, published a policy monograph in 2009, Individual Mandates in Health Insurance Reform, which discusses “issues related to individual mandates and present recommendations on effective implementation of an individual mandate …as part of a broader health care reform.”  The College also ties it to “coverage that is affordable, accessible, portable, and guaranteed” and insists the mandate be enforced “in conjunction with efforts to…strengthen long-term viability of the primary care physician workforce [i.e., its own members].”  This monograph does not mention constitutional issues but is written from the point of view of its physician members.  As such, it represents the rational perspective of an important segment of the physician community.  We do have more than enough comment from the irrational segments. 

In our future posts we shall discuss some constitutional issues both generally and specifically.

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