Monday, February 14, 2011

Obamacare: Between a Rock (Individual Mandate) and a Hard Place( Constitutionality of Law)

Everybody knows Obamacare’s fate hinges on a forthcoming Supreme Court decision on its constitutionality. Everybody is guessing the decision will be 5-4. Nobody knows which way the vote will go. Most of us think we know this is a political, not a legal issue. All of us know the sooner the Supreme Court decides the better, or there will be a lot of wheel spinning and money and energy wasted.

A group of three lawyers from Boston University say they are four reasons why the constitutionality of the individual mandate is such a tough call.

One, Congress has never required anyone to buy a product from private industry.

Two, this requires interpreting the scope of the Commerce Clause, how much government can govern interstate commerce.

Three, it is difficult to decide whether not having insurance coverage qualifies as an activity that affects interstate commerce and if Congress can penalize people for not buying a product.

Four, can Congress require people to buy a product because it is a necessity of life, e.g., food, water, and health care, and for the common good, i.e., to keep premiums low for everybody on the theory that using a product reduces use of health care services and thus insurance costs?

The Boston lawyers conclude “The federal government has never exercised this authority before - and that’s what makes answering the constitutional question so hard.”

But answer is: the Supreme Court must. As an editorial in the February 12 Minneapolis State and Tribute says,

“Most of the ACA's game-changing reforms -- the online exchanges, subsidies and mandate -- don't go live until 2014, but the work of implementing these sweeping reforms will eat up much of the next three years.”

“Without an answer from the Supreme Court, health providers and states have two unacceptable choices: They can continue investing time and resources to comply, knowing that this may all go to waste if a key portion of the law (or the entire law) is declared unconstitutional at some point, or they can gamble by suspending preparations.”

“The risk of standing pat is that they would likely face an insurmountable amount of ground to make up if the law is upheld.”

Whatever the Supreme Court decides, we can live with it. Life and some sort of health reform will go on.


1. Wendy Mariner et al, "Ccan Congress Make You Buy Brocolli? And Why That's a Hard Question, New England Journal of Medicine, January 20, 2011

2. Editorial, "Supreme Court Must Act Quickly," Minneapolis Star and Tribune, February 12, 2011.

Richard L. Reece, MD, blogs a Medinnovation and has a website under constuction. He is the author of three recent books, Obama, Doctors, and Health Reform (Iuniverse, 2009), Innovation Driven Health Care (Jones and Bartlett, 2007), and an E-book, Pros and Cons of Accountable Care Organizations (Practice Support Resources, 2011). He works with but does not speak for The Physicians Foundation, a 501C3 organization representing physicians in state medical societies. Opinions expressed in his blogs are his alone. He can be reached at

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