Return of the Broccoli

See what we did there?

In order to stop the post-mortem application of blunt force trauma to an equine, this will be my last health care related post for awhile! 

In response to my last post, The Gravel Kraken separately posts discussions of activity/inactivity, and of limiting principles. To distinguish between activity and inactivity, Jastonite posts a number of quotes from SCOTUS opinions, each time pointing out the use of the word “activity”, including this one:

Wickard v. Filburn (1942):

“[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as `direct’ or `indirect.’ “

Well, yes, I agree that the Justices in these cases used the word activity. But I don’t think that specific word is what they meant to be the important part. The important bit is “if it exerts a substantial economic effect on interstate commerce”, then Congress may regulate it under the Commerce Clause. Now, I agree that activity and inactivity are different, but the issue is whether the activity / inactivity “exerts a substantial effect on interstate commerce”. I think the case for constitutionality of the mandate goes something like this (and keep in mind that I am by no means a lawyer):

• Healthcare is a significant chunk of the economy, and is interstate in nature. I think everyone can agree on that.
• Thus, congress may regulate healthcare, under the commerce clause.
• The ACA is a legitimate attempt by congress to regulate healthcare.
• The mandate is necessary and proper to the ACA, and thus to achieving congress’ legitimate goal.

Inactivity, not purchasing health insurance, does exert a substantial effect, in that the cost of healthcare for all those that do purchase it goes up. This is not an effect of cost shifting, as Jastonite argued previously, but of adverse selection.  Let’s say that insurance providers are not allowed to discriminate on the basis of pre-existing condition. That’s part of the ACA. Let’s add that there is no individual mandate. Healthy people, then, will be much less likely to purchase insurance until they need it (you can’t tell me no because my condition was pre-existing as of yesterday!). The sick, who of course need insurance, will purchase it. Having a sicker customer pool means an insurance company must make more payouts, and thus the costs to customers will be higher to make up for the loss. The individual mandate, then, is an attempt at solving that problem. There are possibly other ways to address that, but the mandate is the one the government chose, and one that the government deems necessary and proper to achieve it’s goal.

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