A large majority of Americans, of course, have health insurance through their employers, Medicare or Medicaid and are already in compliance with this requirement. Given the relatively modest payment required of those who choose not to maintain insurance, no one is being forced to buy a product they don’t want.
The challengers argue that the mandate is a binding requirement that makes anyone who goes without insurance a lawbreaker. The government has determined, however, that those who pay the penalty, like those who are exempt from the penalty, are not lawbreakers. As a practical matter, the so-called mandate is just a relatively modest financial incentive to have health insurance.
2. Only the individual mandate is at stake in the Supreme Court case.
The mandate is not a stand-alone provision that can be invalidated without affecting the rest of the law. In fact, it is merely an ancillary measure that makes two more-fundamental provisions of the law workable: “guaranteed issue” and “community rating.”
A significant problem with our nation’s health-care system has been that insurance companies can reject applicants who have had health problems, including minor ones. The guaranteed issue provision prevents companies from turning down applicants because of their medical conditions or history. The community rating measure bars insurers from charging higher premiums to those who have had illnesses or accidents.
Experience in the states has shown that if people can’t be turned down for health insurance, there must be an incentive for them to sign up for it before they have an accident or illness. The individual mandate was enacted to ensure that the central, nondiscrimination provisions can work as they were intended — to provide everyone access to affordable health care, regardless of their medical history or current conditions. If the court were to strike down the mandate, the law’s popular provisions on preexisting conditions would fall as well.
3. If the court upholds the health-care law, it means Congress has the power to require Americans to purchase any product.
The health-care case is a test of Congress’s power under the Constitution to regulate commerce among the states. One way to defend the law is simply to say that a requirement to purchase insurance or any other product sold in interstate commerce is obviously a regulation of that commerce. President Ronald Reagan’s solicitor general, Charles Fried, and conservative judge Laurence Silberman have adopted this view.
The Obama administration is not relying upon such a sweeping argument, however, and its more limited claim would not justify any law that required Americans to buy products such as cars or broccoli.