Making the Constitutional Argument

Paul Levy

Posted 1/14/12 on Not Running A Hospital

14 Jan 2012 05:30 AM PST

Massachusetts Attorney General Martha Coakley has submitted an amicus brief in the pending Supreme Court case about the national health reform legislation.  The brief focused on the “individual mandate” portion of the law.  I think it is really well done and I copy the argument summary here:

Having enacted six years ago a prototype of the comprehensive healthcare reform package that Congress would later adopt in 2010, Massachusetts is in a unique position to assess the rationality of the assumptions that underlay both enactments. Specifically, the Court has held that the Commerce Clause empowers Congress to regulate activities that substantially affect interstate commerce. Congress properly exercised that power in adopting a provision in the ACA that requires all non-exempt persons to purchase at least a minimum level of health insurance coverage. Through its legislative findings, Congress rationally concluded that those who fail to purchase health insurance despite their ability to pay for it (“free riders”) not only drain finite State and federal free-care resources, but also negatively impact the availability of privately-issued health insurance policies and the prices at which such policies are sold. Congress further concluded that curtailing the practice of “free riding” would make private health insurance coverage easier for individuals both to procure and to afford.

Having examined data for four years following the adoption of its own individual mandate, Massachusetts can attest to the rationality of Congress’s conclusions. Massachusetts now finds that its efforts to stop healthy people from opting out of purchasing health insurance have increased health-plan enrollment and helped decrease the rate of premium growth. These developments, in turn, prompted a significant reduction in governmental and private free-care expenditures. Because Massachusetts’s empirical experience demonstrates a strong link between eliminating “free riders” and improving access (and reducing costs), Congress acted rationally in drawing the same link as one basis for its regulation of activity affecting interstate commerce.

The Massachusetts experience further demonstrates that Congress was also empowered to enact an individual mandate under the Necessary and Proper Clause. That clause authorizes Congress to
take the steps necessary to implement legislation that falls within a specifically enumerated power. Thus, even if an individual mandate did not fall within the ambit of the Commerce Clause, the broader machinery of the ACA — provisions broadening access, controlling costs, and eliminating denials based on pre-existing conditions — was constructed precisely to regulate the interstate features of the health insurance marketplace. That attacking the “free rider” problem is rationally related to achieving the ACA’s interstate commerce objectives likewise finds strong support in the Massachusetts data.

Finally, while Massachusetts has reaped many benefits as a pioneer in healthcare reform, its experience also demonstrates the limitations on a single State, acting alone. Many aspects of health insurance are the exclusive domain of federal regulators, while innovations by individual States have consequences beyond that State’s borders. This demonstrates both the interstate character of the health insurance market and the need for a coherent federal approach to its regulation.

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