By Dan Kennedy • The press, politics, technology, culture and other passions

Understanding the legal challenge to health care

I’d be curious to know whether anyone has a good link explaining the reasoning behind the legal challenges to the federal health-care law. Every story I’ve seen — including this one, from the New York Times — reports that it might be unconstitutional to require people to buy medical insurance. But I haven’t seen anything that places it in context.

Here’s what I don’t understand. The courts clearly have no constitutional problem if the states impose such a requirement. Most states, after all, mandate that their residents buy auto insurance if they wish to drive. And Massachusetts — upon which the federal health-care law is based — requires that everyone buy medical insurance.

Moreover, under the 14th Amendment, states may not deprive their residents of liberties that they enjoy under the U.S. Constitution. If anyone has used the 14th Amendment to challenge state insurance mandates, I’m not aware of it.

If you’ve seen something that answers these questions, please post a link in the comments.

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  1. L.K. Collins

    The complaint itself is the best place to go to see what their reasoning is.

  2. Karen Klinger


    Massachusetts requires people to have an insurance policy not if they simply “wish to drive,” i.e. have a driver’s license, but also own a car registered in their name. If, for instance, they drive around using company cars or Zipcars, some other entity takes care of the insurance.

    An often-repeated argument is that people can avoid paying auto insurance by opting out of car ownership. But in the future under the new federal law, the only way to do the same with health insurance is to opt out of living in the U.S. (with a few exceptions). It will be interesting to see how this plays out in the courts.

    Karen Klinger

  3. Matt Kelly

    The auto insurance analogy doesn’t fit because citizens can always exercise the right not to drive– which does not endanger others, and therefore you don’t need auto insurance. Sure, for folks in Wyoming or Los Angeles, life without a car is impractical, but in theory it can be done.

    On the other hand, you can’t exercise a right not to be sick; illness is a fact of life for all people, and you therefore can pose a risk to others if you’re contagious, or have a heart attack while driving, etc.

    To my thinking, this means ‘the state’ (federal, state, whoever) can require that you have insurance, because we have a social contract to protect each other from broad social risks– illness and disease included. So the state should be able to mandate that you pay for insurance.

    Personally, I’d rather pay that in the form of taxes and deal with idiotic government bureaucrats, rather than the form of insurance premiums and idiotic insurance bureaucrats. But hey, details.

  4. I understand the rational behind the mandate, but I also oppose it. It is, as far as I know, the only time any government anywhere in the world has mandated that a citizen enter into a contract with a private company just for the privilege of living within its borders.

    Your example of the car insurance (or home, etc) also doesn’t apply. No one is forcing you to own a car. You are free to walk or take the bus if you want. With the healthcare law, you have no such alternative.

    I don’t know about the Constitutional argument, but I do know that as a young, healthy man, I am forced against my will to pad the balance sheet of Blue Cross. I think it’s a good idea for everyone to have insurance and I would have it even if the law wasn’t in place, but I don’t like the idea of it being a crime not to have it.

    • Dan Kennedy

      @Brian: No one is forcing you to get medical care, either. I don’t see what the difference is.

      • Dan Kennedy

        @Brian: And I hardly need to add that you could get run over by a car tomorrow. Lord knows how much Blue Cross has shelled out for my bicycle accident, which just as easily could have occurred when I was 24 instead of 54.

  5. C.E. Stead

    DK – about that MA mandate. It doesn’t exist.

    For auto insurance, drivers have the option of depositing $10,000 with the Treasurer to reimburse other parties if you are at fault in a accident and not purchase insurance. Likewise with health insurance, the state can intercept income tax refunds up to that $10,000 threshhold to reimburse hospitals if you choose not to purchase (although I’m not sure if you retain ownership of that money the way you do with the deposit alternative for auto). Since you have the option not to purchase, technically there is no mandate.

    The Federal program relies on the Cosntitutional clause giving them the right to regulate interstate commerce to force the purchase from private sector entities. Ironically, Congress’ own laws prohibit interstate insurance companies, so how are they regulating an interstate transaction? For example, Blue Cross/Blue Shield is actually fifty seperate franchises operating under state laws, not a single entitly due to this state-by-state mandate – so how is interstate commerce achieved?

    And the purist argument is that any powerm not specifically given to the Federal govenment reverts to the states – so while the states may produce regulations (and its citizens are free to leave if they don’t like them), the Feds may not unless it is enumerated.

  6. @Dan: “No one is forcing you to get medical care, either. I don’t see what the difference is.”

    If you play those scenarios through, they seem to play out differently.

    If you elect not to register a motor vehicle for the use on public roads, the government will not demand for you to purchase insurance.

    If you elect not to seek medical care, the government will in certain cases still demand you to obtain medical insurance.

    It seems different to me.

    @Brian: When you become an older, perhaps less healthy individual, will you be appreciative that your medical costs are being averaged out against the healthy younger people?

  7. @Dan – No one is forcing my to get medical care, but the government is forcing me to pay a premium every month to obtain health insurance. It is different.

    Also, I understand the risks, and know that I could need it tomorrow even if I don’t need to today. That, however, raises a separate issue for me. I haven’t been to the doctor’s in over a decade. For part of that time I was under my parents insurance, and part of it I was uninsured, but assume I was paying the premium myself the whole time. At $200 a month times 12 months times 10 (actually more like 12) years, the total bill comes to $24,000.

    The worst that is likely to happen to me is that I a break an arm playing football with my buddies some Saturday morning. I imagine the bill in that case would come to somewhere in the neighborhood of $6,000 to get me back into shape. That means Blue Cross has made $18,000 on me. [This now gets to your point, Andrew] Of course, they will probably spend most of it on a senior citizen whose medical bills will be significantly and consistently higher than mine.

    My point is, why is the government allowed to play the actuarial tables and I am not? They know I am unlikely to need medical care, but they want me to pay into the system to cover the old folks. I think I, as a reasonably intelligent adult, should be able to do a cost-benefit analysis and decide on my own if it’s worth it. For the record I do, because I know that no matter how small the probability is, I might get cancer and then need the insurance. However, I wouldn’t quarrel with someone my age or younger who came to a different decision.

    • Dan Kennedy

      “The worst that is likely to happen to me is that I a break an arm playing football with my buddies some Saturday morning.”

      @Brian: What we are dealing with here is a failure of imagination. You don’t drive? You don’t ride in cars? Think about it. Your scenario is hardly the worst that is likely to happen.

      It’s ironic that opponents of the health-care law have succeeded in falsely labeling it as government-run health care, which, in fact, would be so much simpler and would make these arguments irrelevant.

  8. Heather Greene

    When it doubt, try Rachel Maddow.

    Also note that Virginia Attorney General Ken Cu is a fav. for the GOP nomination for U.S. Senate in two years.

  9. Heather Greene

    Let’s face it, the major reason behind this lawsuit isn’t “to help those mandidated by federal law to buy health insurance” since those folks are most the poor. It’s about fundraising.

  10. It isn’t quite the government playing the actuarial tables directly. Its the government forcing you to help the private insurance company play the actuarial tables.

    Dan, if it helps Slate had an article last May arguing why the states AG shouldn’t be allowed to file suits against the individual mandate.

  11. Rich Carreiro

    The states and the federal government are rather different in some ways.

    One biggie is that states are held to have a plenary “police power” whereas the federal government does not. To oversimplify, a state has the power to do anything it wants as long as it is not forbidden by the state’s constitution and the federal constitution whereas the federal government has no power to do anything other than what the federal constitution says it can.

  12. Rich Carreiro

    For example:

  13. Some states require auto insurance while others don’t. It’s different, however, to whether or not the federal government can require people to buy health insurance, not a state.
    The Constitution specifically defines the role of the federal government and then states that everything else will be handled by the states. While the federal government has really expanded its role since those days, it might be time to start making some of these cases.
    In addition, as anyone who has had to buy health insurance outside of an employer option knows, it is not auto insurance.
    Right now, we’re paying about $100 a month for full insurance on two inexpensive cars, which isn’t bad at all. It was a lot more in Mass. for one car. But this kind of “forced” payment, when it is forced, is not a health care payment of 10 or 12 times that amount. How do I know? I’ve done it before.
    When I had a job with a company that didn’t offer health insurance, from 2005 to 2007, I was buying the least expensive plan I could find, Anthem BCBS. It was $917 a month for two adults and one child, with huge deductibles and co-pays. In the 2.5 years we had it, I think we used it a few times, and didn’t get much coverage at all. Assuming now, with four people, it would be $1,200 or more, easy.
    How is a family that isn’t filthy rich supposed to be able to afford that? They can’t. This makes the Obamacare law, as it stands now, simply impossible to adhere to. And yet, in a couple of years, millions of people will be forced into this situation, lining the pockets of more insurance companies. It’s basically corporate welfare enforced by the IRS. And it cost the Democrats control of Congress.

  14. @Dan – I understand your point – and actually, I was in a head on collision while driving a fairly dangerous vehicle in September. I totaled it, but walked away without a scratch – but my argument still stands. As a rational adult, I should be allowed to decide whether or not I think health insurance is a good idea based on my own analysis of the risks and benefits. I would have less of an objection if it were a single payer system along the lines of Social Security. Here, I am enriching a corporation and shareholders.

    @Rich – Can you cite a SCOTUS decision? The wiki article is unsourced. Thanks.

    • Dan Kennedy

      The idea that auto insurance isn’t a government mandate because you don’t have to have a car is ludicrous. It is voluntary only in the sense that working, eating and putting a roof over your head are voluntary. As for whether the interstate commerce clause is sufficient to provide constitutional cover, every analysis I’ve seen makes two points: yes, going back to the Progressive era; but maybe no, because of some of the exotic specimens who’ve been appointed to the federal bench in recent years.

      Again, it’s hard not to observe that a flat-out government insurance system would easily have passed constitutional muster, even though it would have been well to the left of what actually passed.

  15. Heather Greene

    But back to Dan Kennedy’s original question. It wasn’t whether you agree with this potential ruling or not, but a link to an in-depth legal analysis from an expert(s) on constitutional law in USA showing the rational behind this ruling in favor of Ken Cuccinelli (remember that name, since he about get a whole lot more face time on FNC). DK’s right. There isn’t much out there. I haven’t found like link that explains this potential ruling beyond a few sentences using pretty simple and broad explanations.

    Side note, pet peeve is when I see “constitutional law expert” in print because it ignores that USA isn’t the sole nation on Earth with a constitution so that expert is only an expert on AMERICAN constitutional law.

    • Dan Kennedy

      @Heather: And the lawsuit itself reads more like a political polemic than a legal brief.

  16. Mike Rice

    The health-care scenario for the self-employed is even more dismal. I’m self-employed, over 60, and am currently paying $1300.00 per month for my wife and I which includes a $2000K deductible each without drug cover and will increase by 13.9% on Jan. 1.

    Paying for two college educations was easy compared to this gangster B.S.

  17. Steve Stein

    I am unversed in constitutional law of any stripe, but it might indeed be possible that the ACA is unconstitutional because of the burden it puts on individuals and states to purchase health insurance. (This argument is buried in there, although you’ve got to wade through a lot of the “political polemic” to get to it.)

    This is an inevitable result of trying to do healthcare “on the cheap” as regards the federal budget. Raising taxes so that the government can pay for health care for citizens (aka “single payer”) wouldn’t have this constitutional problem, even though compelling people to purchase health insurance for themselves might lead to more or less the same final result.

    • Dan Kennedy

      @Steve: As I understand it, legal experts would have considered a challenge based on the commerce clause to be trivial, even an abuse of the courts, until recently — a decision in favor of the plaintiffs would have flown in the face of many decades of jurisprudence. But now it appears that things may be swinging the other way, which has turned this into something of a nail-biter.

      @BP: The auto insurance analogy holds up quite well when you consider the damage that you can do to all of us by showing up in the hospital with a serious injury or illness if you don’t have insurance. In fact, though, we can leave auto insurance aside, given that the Massachusetts health-insurance mandate is pretty much identical to the federal mandate. Why is it all right for a state to do it but not the federal government? I know, I know, the 10th Amendment. But again, based on what I’ve read, that’s not an argument that would have been taken seriously until very recently.

  18. Matt Kelly

    >>As a rational adult, I should be allowed to decide whether or not I think health insurance is a good idea based on my own analysis of the risks and benefits.

    (1) Unless you’re a doctor, you don’t have the qualifications to made an informed analysis of your risks and benefits. I have no idea what my cholesterol levels are, whether my family’s history of high blood pressure increases my odds of stroke or heart attack, whether I have an aneurysm quietly building in my brain that might burst at any time. I don’t know whether YOUR history of, say, alcoholism or serious depression might devolve into suicidal impulses that lead you to drive your car into the coffee shop where I’m sitting. I don’t know whether the man next to me on the airplane got all his vaccinations before taking that trip to the Congo. There are far too many complex variables in medicine and health for anyone except the most trained professionals to do an intelligent risk analysis.

    (2) Let’s put this in a simple, but scary, public health analysis. What if someone who opts not to get health insurance wakes up tomorrow with smallpox– would we all sit around waiting for him to seek treatment, as he infects the rest of us?

    Of course not. We as a state would strap him down, inject the vaccine in his arm (it can blunt the effect of small pox if done early), put him in isolation, and vaccinate everyone else who had contact with him to protect the population at large.

    If that’s how we would act in *reality,* the same logic exists in the *possibility*– we, the state, have the right to compel citizens to take care of their health so as not to endanger others. That would mean health insurance and vaccination requirements.

    This bit about whether we get the insurance from a private business or the government is a red herring. It doesn’t matter where it comes from; it matters that the we the people, to protect our self-interest, have the right tell everyone within our borders to go get it.

  19. BP Myers

    @Dan Kennedy says: The idea that auto insurance isn’t a government mandate because you don’t have to have a car is ludicrous.

    Actually, it’s not. You don’t need auto insurance on a vehicle that doesn’t leave your property either. You only require auto insurance on vehicles that travel on public roadways.

    But the auto insurance analogy breaks down completely based on the fact that you are not (unless you choose to) insuring yourself or your own property, but are insuring against the damage you may inflict upon others.

    The federal government mandate that you buy health insurance based on the commerce clause (which regulates interstate commerce) is what is ludicrous on its face.

    However, the Massachusetts mandate that you buy insurance is not based on that flimsy premise so, ironically, it may be more constitutional than is the federal mandate.

  20. BP Myers

    @Matt Kelly says: This bit about whether we get the insurance from a private business or the government is a red herring.

    In other words, “It’s just a goddamned piece of paper!”

  21. BP Myers

    @Dan: As you know, I don’t believe it’s constitutional for an individual state to mandate the purchase of a product or service from a private company. My point is only it may be barely more constitutional certainly than a federal mandate.

    I’d also defend the right of a hospital to deny treatment to an uninsured person, but let’s face it. Those showing up for medical care without insurance get only the barest of care as it is. The best care is saved, of course, for those with money.

    PS: Do you pay a surcharge to your insurance company for engaging in dangerous activities such as riding a bike? And why should I pay extra for you to engage in such activities?

    • Dan Kennedy

      “I don’t believe it’s constitutional for an individual state to mandate the purchase of a product or service from a private company.”

      @BP: Which brings us back to the 14th Amendment argument. Which I don’t believe anyone has made. Which brings me full circle to my original question.

      I do find it curious that generally sensible people adopt flaky libertarian (not to be redundant) arguments when it comes to medical insurance.

  22. BP Myers

    @Dan Kennedy says: I do find it curious that generally sensible people adopt flaky libertarian (not to be redundant) arguments when it comes to medical insurance.

    Thanks (I think.)

    As you may recall, as a mechanism to get around the pesky constitutional problem of solving the health care crisis, I was in favor of a robust public option.

    For example, when faced with an unemployment problem, the government didn’t force you to go out and buy private unemployment insurance.

    When faced with an elderly health care problem, the government didn’t force them to go out and buy private insurance.

    When faced with poverty among senior citizens, the government didn’t force everyone to go out and buy an annuity.

    We are being forced to do business with companies and corporations that have, through lobbying and campaign support, bought our politicians.

    If we allow it, we are indeed a nation of sheep.

  23. BP Myers

    Had forgotten about this, however (concerned about constitutional challenge) the Obama administration began calling it a “tax”:

    And something about wheat.

    Yes, wheat.

  24. Lou Gawab

    Here’s where I see the difference…

    With driving, you have an option of choosing not to drive.

    With medical issues, is there any way to opt out?

    Also, isn’t driving codified in law as a “privilege” given by the government…i.e…not a “right”.

    • Dan Kennedy

      @Lou: We live in the United States. You have an option not to drive just as you have an option not to work or eat. As for opting out of medical issues, of course you can. You can let that ol’ tumor keep right on growing if you like.

  25. Lou Gawab

    You equate not driving to not eating? C’mon Dan.

    One is certain death, the other is a lifestyle (and environmental) choice.

    • Dan Kennedy

      @Lou: For the vast majority of us, I equate not driving to not working.

  26. Lou Gawab

    Nice that you speak for the majority. However, it doesn’t matter how you7 equate the twqo….since this subject began on “legal challenges”…what matters is how the courts equate the two…and they don’t.

    Driving in Massachusetts is still considered a “privilege”.

    And it IS still a choice (and by no means far from equivalent with not working.)

  27. Lou Gawab

    meant to say:

    [i]”…and by no means equivalent with not working[/i]

  28. Lou Gawab

    …and my correction included a double-negative.

  29. Heather Greene

    The indivual mandate come from the Heritage Foundation and was part of Bob Dole’s healthcare reform plan.

    Closing Gitmo and civilian federal court trials for its inmates was the idea of Pres. G.W. Bush.

    The START treaty and nuclear disarmament in general was the vision of Pres. Reagan.

    The graduated income tax system was the started by Pres. T. Roosevelt. Now with the talk about raising those with higher fortunes personal income tax to still under 40% as a Bolshevik/A.C.O.R.N./New Black Panther Party plot while in the “glory days” of Reagan and now Romney, the income tax levels were at 90%. Who knew USA was a socialist nation at the height of the Cold War?

    I usually hate this idea often mention by those more politically conservative folks that USA is a center-right nation and moving more far right, but some times I have to wonder.

  30. @DK wrote: The idea that auto insurance isn’t a government mandate because you don’t have to have a car is ludicrous. It is voluntary only in the sense that working, eating and putting a roof over your head are voluntary.

    I lived for 15 years in Boston without a car and managed quite well, actually, and still managed to work, eat, and keep a roof over my head. There are millions of people who live this way. And, “auto insurance” in some states is voluntary.

  31. C.E. Stead

    And once again – THERE IS NO MANDATE TO PURCHASE INSURANCE from an insurance carrier in MA. Both health and auto have a deposit option instead. Which is why there have not been Cosntitutional challanges here.

    • Dan Kennedy

      @C.E.: A distinction without a difference. At the federal level, you can get out of the purchase requirement by paying a penalty.

  32. At the federal level, you can get out of the purchase requirement by paying a penalty.

    @Dan – Kind of like getting out of the speed limit by paying the ticket.

  33. Mike Benedict

    Perhaps the better analogy would be mandated immunizations. They, too, were fought tooth and nail when implemented. Now, a few wackos notwithstanding, they are accepted public health practice.

  34. Mike Benedict

    As i think about it more, the auto insurance analogy works well even if you don’t have a car. Consider: I am walking down the street and you, Mr. Uninsured Motorist, runs me over. I live, but you can’t pay my hospital bills.

    Mandating auto insurance protects me (to a large degree) against that.

  35. Steve Stein

    A late-breaking entry… perhaps it’ll be the subject of a new post…

    Federal Judge In Va. Rules Part Of Health Care Law Unconstitutional

    “A federal judge in Virginia ruled Monday that the individual mandate contained in the health care law passed by Congress and signed by President Barack Obama this year is unconstitutional.

    “Judge Henry E. Hudson found in favor of Virginia Attorney General Ken Cuccinelli, who brought this suit separately from the other state attorney generals suing the federal government over the law. He was the first judge to rule against the law.

    “Hudson’s ruling was declarative and not injunctive, so it will be reviewed either by the appellate court or by the Supreme Court.”

  36. Steve Stein

    More reaction:



    Steve Benen

    Jed Lewison on Kos

  37. Steve Stein

    And the NYT

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