Perspective
Perspective Roundtable
The Constitutionality of the Individual Mandate
N Engl J Med 2011; 365:e36October 27, 2011
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open through November 2, 2011
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Since the Affordable Care Act was passed, numerous lawsuits have been filed arguing that the federal mandate that individuals obtain health insurance is unconstitutional. Three appeals courts have issued mixed rulings, and the matter will probably ultimately be decided by the Supreme Court. In this video roundtable, Wendy Mariner moderates a discussion between legal scholars Jack Balkin and Ilya Somin focusing on the relevant constitutional issues.
5 Reader's Comments
ANDREW FISCHER, MD | Physician | Disclosure: NoneLAFAYETTE INOctober 28, 2011Heath Insurance vs. Health Care
I found Somin's comments particularly refreshing about the difference between heath insurance and health care. However, his speeding analogy does not hold water. A law against speeding decreases reckless driving hence decreasing the odds that the speeder will directly injure or kill others.
When Congressional Democrats passed and President Obama signed the ACA they denied that they were "raising taxes". So now that the bill is a law which is being challenged, it seems that this is the only argument that can win--say its a tax, and we all know Congress has the power to tax.
The point that Smith misses is that people are being required to buy something from insurance companies not the government.
I agree with Wey--it will be 5-4. Unfortunately for our Republic, the 4 liberal Justices don't use the Constitution as the rulebook.John Smith | Physician | Disclosure: NoneOctober 28, 2011I don't see the unconstitutionality
I wish they had answered this question: What is the difference between an individual mandate to buy health insurance and one to buy roads?
People generally put the question this way: if an individual mandate is constitutional, govt can force me to buy broccoli. But I never heard anyone put it as: if an individual mandate is unconstitutional, can't I refuse to 'buy' ANY service from the government? Say I carry my own gun and I decide I don't want to pay taxes for local police? Or if my children go to private school, why isn't an individual mandate that forces me to pay for public schools unconstitutional?C C CALESCIBETTA, MD | Physician | Disclosure: NoneLONG BEACH CAOctober 27, 2011Affordable Care Act will be declared unconstitutional by U.S. Supreme Court
The U.S. Supreme Court will hear the case and render a 5-4 decision declaring the law mandating purchase of health insurance or pay an amount to the Federal Government as unconstitutional, (Chief Justice Roberts, Justices Scalia, Thomas, Kennedy, and Alito for the majority).The U.S. Supreme Court will hear the case and render a 5-4 decision declaring the law mandating the purchase of health insurance or the payment of an amount to the Federal Government as unconstitutional (Chief Justice Roberts, Justices Scalia, Thomas, Kennedy, and Alito for the majority).
ROBERT WEY, MD | Physician | Disclosure: NoneMOGOLLON NMOctober 27, 2011Absurdity
The law is prima facie unconstitutional.
The discussion appears to misrepresent key aspects of the ACA and law
The ACA has no mandate to purchase health insurance. The concept of a "mandate" is a clever, artful phrase to distort the ACA. The ACA "requirement" to maintain minimum coverage is constitutional and was misinterpreted by lawyers. I disagree with Prof. Somin. People are required by the ACA to pay (or "buy") health care, not necessarily health insurance. Individuals could meet the requirements of the law without buying health insurance. Health insurance may be an option, but it is not a mandate or essential requirement. Individuals buy health services that they may or may not use like when we purchase cable subscription and we may not use all channels. This is quite different from fire insurance on my house. One needs to read the ACA carefully, the briefs and decisions by the Courts, understand how health care works in the US, and understand regulatory policy as implemented by Treasury, OMB and HHS. Understanding ALL these issues resolves the apparent paradoxes.
The comments section does not allow me space to explain this better. Just read the law, not comments on the law.