There are several reasons why the recent 11th Circuit Decision finding the Individual Mandate Unconstitutional is actually a good thing for Health Care Reform.
The first is that it in the process of reaching their decision they struck down a lower court ruling that the mandate was "unseverable" from the rest of the act and that as a result the entire bill was unconstitutional. The 11th Circuit did support the severability of this element, and therefore the issue of whether other features of the Affordable Care Act, such as the ban on pre-existing conditions, the Exchanges, the closing of the donut hole, the premiums subsidies and comparative effectiveness measures can now go forward without any further legal challenge.
It also means that since the 6th Circuit has already found the mandate Constitutional, the issue is more likely than not to go the Supreme Court to resolve the conflict no matter what the 4th Circuit, which is still looking at the issue, ultimately decides. For now though, that conflict will not be about the Constitutionality of the entire Bill, it will only be about - the Individual Mandate.
And frankly, the individual mandate isn't the Heart of Health Reform - far from it.
In pure and simple terms the mandate is simply a method to bring down costs by spreading the risk pool wider. Without it people can go without paying for health insurance only until they actually get sick, and since there is now a ban on blocking access to care due to a "pre-existing conditions" that person would essentially be able to avoid their own responsibility to seek preventive measure that might have avoided or lessoned their illness in the first place and instead wait until the last minute and dramatically increase costs for everyone.
This is how the Heritage Foundation described it, back in the days when they used to support the idea.
But as part of that contract, it is also reasonable to expect residents of the society who can do so to contribute an appropriate amount to their own health care. This translates into a requirement on individuals to enroll themselves and their dependents in at least a basic health plan - one that at the minimum should protect the rest of society from large and unexpected medical costs incurred by the family. And as any social contract, there would also be an obligation on society. To the extent that the family cannot reasonably afford reasonable basic coverage, the rest of society, via government, should take responsibility for financing that minimum coverage.
The obligations on individuals does not have to be a "hard" mandate, in the sense that failure to obtain coverage would be illegal. It could be a "soft" mandate, meaning that failure to obtain coverage could result in the loss of tax benefits and other government entitlements. In addition, if federal tax benefits or other assistance accompanied the requirement, states and localities could receive the value of the assistance forgone by the person failing to obtain coverage, in order to compensate providers who deliver services to the uninsured family.
The individual mandate is and was and Republican Idea that goes all the way back to the Nixon Administration. The original idea was one of "Personal Responsibility" - remember that old gem?
Now of course, they rail against the idea that people should be taking care of,and paying for themselves as a massive government intrusion, an "assault on freedom". Freedom to do what exactly - make everyone else pay to keep you alive, even when you can afford it?
This means that their jihad against Health Reform and the individual mandate is actually an attack on their own ideas and their own principles, and watching them create gorgeous logic pretzels over it is a sight to behold.
In this case specifically the 11th Circuits Decision doesn't actually have any Constitutional Basis. Their argument ultimately wasn't that the Congress doesn't possess this power, as part of their ability to "regulate interstate commerce" - instead they claimed that the power was "Unprecedented" and "Extreme".
In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from private companies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authority affords sufficient and meaningful limiting principles; and (3) the far-reaching implications for our federalist structure.
So exactly what passage of the Constitution says Congress can't do this? As Thinkprogress points out - there isn't one.
This is one way to evaluate whether a law is constitutional, but a better way is to ask The Constitution provides that Congress may “regulate Commerce…among the several states,” and the very first Supreme Court decision interpreting this language made clear that this power is “plenary,” meaning that Congress may choose whatever means it wishes to regulate interstate marketplaces such as the national health care market, so long as it does not violate another textual provision of the Constitution
The Supreme Court decided back in 1954 that Congress does indeed have the authority to regulate insurance markets with the case of US V South-Easter Underwriters.
A fire insurance company which conducts a substantial part of its business transactions across state lines is engaged in "commerce among the several States," and subject to regulation by Congress under the Commerce Clause. P. 322 U. S. 539.
And as far as the "unprecedented" portion of the argument, that isn't strictly true either. Opponents of the Mandate common ask "What other item does the Federal Government force you to buy?" - while ignoring that it makes people buy unemployment insurance, retirement insurance (Social Security) and retirement health care (Medicare).
Of course the main difference between these systems and the Affordable Care Act is the fact that what you buying in all these case are services provided by public entities, and there isn't a completely public option within the ACA.
But even that comparison isn't absolute because Medicare has Medicare Advantage Part-C which goes directly to private companies - so the mandate is hardly unprecedented, it's just privatized where as all of these others are public - which means that opponents of the mandate would apparently be perfectly alright with it - if it had included a public option the same way that Unemployment Insurance and Medicare does.
And this type of use of Federal power isn't new, it was President George Washington who mandated that each and every able bodied (white) man purchase a musket under the Militia Act of 1792. Certainly if our very first President took such a step, the mandate to buy health insurance is hardly "unprecedented".
In another example it was President John Adams who mandated that all Ship Captains purchase Health Care for their Seamen.
In July of 1798, Congress passed – and President John Adams signed - “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.
Technically it wasn't the sailors who bought the healthcare, it was their Captains, so this was an Employer Mandate - even so, the precedent has clear been long set.
As has the power of Congress to implement regulation of the markets of this type, which has been previously noted by Justice Antonin Scalia.
The (11th Circuit) Court is also simply wrong to claim that a decision upholding the ACA would necessarily mean that there are no limits on federal power. The Constitution does not simply allow Congress to regulate commercial markets. It establishes that, in Justice Scalia’s words, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Scalia’s rule is important because the ACA doesn’t just require people to carry insurance, it also eliminates one of the insurance industry’s most abusive practices — denying coverage to patients with pre-existing conditions. This ban cannot function if patients are free to enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers.
Those who claim the mandate is "Unconstitutional" simply have not and can not specifically point to the Constitutional Clause that would prohibit the it. It's been done before, several times, and it could be done again. The question is: Do we need it?
If the already established standard, as written by Justice Scalia himself, is that the Federal Government "possesses every power needed to make a regulation effective and the effectiveness of the pre-existing condition ban is threatened when people can self-select themselves out of the system - the mandate is indeed a power that the Federal Government possesses.
I'm not personally a big fan of the individual mandate, but if this is true - then it's simply true and that's the end of the issue, but if it's not, then we don't really need the mandate at all.
As it stands now, the mandate itself is actually fairly weak. It doesn't apply to anyone who already has health care through their employer, Medicare, Medicaid, S-Chip, Tricare or the VA. If there aren't any affordable plans in your area, even with subsidies, it doesn't apply. If you can afford care, but still choose not to purchase it - the potential cost increase that might generate is offset by an IRS fine. If you choose not to pay the fine, the IRS is prohibited from taking legal action against you.
If it were removed I don't think Health Reform would collapse on itself. I think it would carry on and continue to function. It would simply be returning to what we have now as people just go without care until they have to go to the Emergency Room and stick everyone else with the bill. That system happens to Suck a Douche Hose, but it functions.
The really funny part to me is that besides railing against their own idea, all mandate jihadist are really trying to to do is attack and embarrass President Obama.
But the fact is that Obama was never really on board with the Individual Mandate either.
He only signed it because that was the Law that could get past Conservative Democrats like Max Baucus, Joe Leiberman, Ben Nelson and the their Health Insurance Lobby Enablers who wanted it. He took something he didn't want, in exchange for a ton of other things that he did. And if we ultimately lose that one item, which I frankly doubt consider Scalia's previous position on it (unless the Supreme Court does something Ridiculously Partisan - and like, when has that ever happened?) then as of now we'll still have the rest of the law in place no matter what the SCOTUS Decides.
Even if the Mandate is stuck down - we'll still have the Exchanges, the 80-85% MLR, the expanded power to limit insurance company rate hikes, the closing of the donut hole, the insurance premium subsidies, adding years to the solvency of the Medicare Trust Fund, the implementation of Local Clinics, allowing young people to stay on their parents care until they're 26, the 40% Rate Cut for High-Risk Pool Insurance, and the 30-50% Tax Credits to Small Business to finally Buy Health Insurance for their Employee for the First Time Ever, and ultimately saving Hundreds of $Billions from the Federal Budget for the first Ten Years.
Just the way that Obama originally wanted it to be, without a mandate. In the end, that's a Win/Win to me.
Vyan