# Justices signal possible trouble for health insurance mandate **URL:** \ **Category:** Great Debates\ **Created:** [March 27, 2012, 5:11pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961 "2012-03-27T17:11:45Z")\ **Posts on this page:** 20\ **Page:** 14
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 2, 2012, 8:56pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/262 "2012-04-02T20:56:26Z")
> [@Hamlet](#): > > Ummm, you can refuse to buy insurance. You just have to pay an additional tax. Oh. Sorry. It’s not a tax, it’s a “shared responsibility payment”. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [April 2, 2012, 9:04pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/263 "2012-04-02T21:04:30Z")
> [@Bricker](#): > > Of course not. > > But that’s because there was no government law at issue in Wickard that compelled the customer to purchase wheat. > > If the government had subsequently passed such a law, it would have been constitutional, under the same rationale with which Wickard was decided. I don’t see how. The ICC allowed regulation of the production of wheat. As tortured as the _Raich_ decision was it allowed regulation of the production of weed. Neither case dealt with a person who was not engaged in commerce in the defined market. One simply does not follow from the other. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 2, 2012, 9:47pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/264 "2012-04-02T21:47:13Z")
> [@Hamlet](#): > > Oh. Sorry. It’s not a tax, it’s a “shared responsibility payment”. Aaaaaaah, the ol’ SRP trick! ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 2, 2012, 9:50pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/265 "2012-04-02T21:50:42Z")
> [@Bricker](#): > > Of course not. > > But that’s because there was no government law at issue in Wickard that compelled the customer to purchase wheat. > > If the government had subsequently passed such a law, it would have been constitutional, under the same rationale with which Wickard was decided. But I’m still not seeing why the court can’t narrow the scope of _Wickard_ to exclude the HC Mandate, but not disrupt the laws passed since that decision. If they said we’re not overturning _Wickard_, but we’re not seeing it as applicable to the HC Mandate, what current laws or regulations would be threatened? If none (which is what I suspect), then what’s the big deal? ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [April 2, 2012, 9:50pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/266 "2012-04-02T21:50:51Z")
> [@Bricker](#): > > Yes, but in Lopez (and Morrison) the problem was how attenuated the activity being regulated was from the commerce. Here, the activity being regulated is the commerece, or lack thereof. Is it? Or is it a question of timing? > [@Verrilli](#): > > But I think it’s common ground between us and the Respondents that this is an interstate market in which everybody participates. And they agree that – that Congress could impose the insurance requirement at the point of sale. And this is just a question of timing… ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 2, 2012, 10:16pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/267 "2012-04-02T22:16:58Z")
> [@Bricker](#): > > Then I can recast this debate the same way: “If you’re using the health care system (activity) you have to participate in the mandate (regulation).” > > And wait until you hear how I define “using the health care system.” > > It’s not just “first.” It’s first plus sixty years. So you’re saying _Loving_ should not have overruled _Pace_ after 84 years? ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [April 2, 2012, 10:18pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/268 "2012-04-02T22:18:50Z")
> [@John\_Mace](#): > > But I’m still not seeing why the court can’t narrow the scope of _Wickard_ to exclude the HC Mandate, but not disrupt the laws passed since that decision. If they said we’re not overturning _Wickard_, but we’re not seeing it as applicable to the HC Mandate, what current laws or regulations would be threatened? If none (which is what I suspect), then what’s the big deal? There is no need to narrow the scope of _Wickard_. The court never touched on the subject at hand which is forcing an individual to purchase something. The government can, and does, regulate the producers of the product (health insurance companies). **Bricker** seems convinced otherwise but, it seems to me, if he was correct the court would not have bothered hearing the case. If this is so obvious based on _Wickard_ I’m truly amazed that Kennedy thought it would fundamentally change the relationship between government and citizen. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 2, 2012, 10:25pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/269 "2012-04-02T22:25:30Z")
Well, this is interesting. > [@Saint\_Cad](#): > > So you’re saying _Loving_ should not have overruled _Pace_ after 84 years? I think he’s saying the underpinnings of the national economy never rested on _Pace_, so overruling it wasn’t particularly disruptive. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 2, 2012, 10:34pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/270 "2012-04-02T22:34:05Z")
> [@Bricker](#): > > Well, as I read it, he was saying that a constitutional way way to cure the free rider problem would be to avoid taking responsibility for the care of the uninsured. He was \*not \*referring to the Constitution; the discussion was about our _social norms_. Norms he thereby told us he does not share or respect. Clear now? > [@Fenris](#): > > For your analogy to work, the Supremes would have had force everyone to grow wheat. Wrong. You can choose not to buy or grow wheat. You cannot choose never to need health care. You’re in that market by virtue of being alive, like it or not, yammering about the “freedom” to make the rest of us pay for it notwithstanding. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 2, 2012, 10:35pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/271 "2012-04-02T22:35:31Z")
> [@yorick73](#): > > if he was correct the court would not have bothered hearing the case. There was a circuit split on a national law. Yes, they had to take it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 2, 2012, 10:48pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/272 "2012-04-02T22:48:34Z")
> [@ElvisL1ves](#): > > There was a circuit split on a national law. Yes, they had to take it. They don’t have to take a case just because there’s a circuit split. There has been a split since 1985 on whether a defendant’s silence may be admitted as evidence of guilt prior to the administration of a Miranda warning. SCOTUS has denied review in at least 18 cases raising the issue since 1996. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 2, 2012, 10:57pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/273 "2012-04-02T22:57:02Z")
That’s procedural, not statutory, so there’s no basic problem in leaving it. Or are you saying there could be a federal ACA program in some districts but not others? Yes, they had to resolve that. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 2, 2012, 11:12pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/274 "2012-04-02T23:12:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, this is interesting. > > I think he’s saying the underpinnings of the national economy never rested on _Pace_, so overruling it wasn’t particularly disruptive. Then how about \*Brown \*because I think the disruption it caused overruling \*Plessy \*far outweighs what overturning \*Wickard \*would do. In fact, overturning \*Wickard \*would probably not be as disruptive as people think as it would create a vaccuum of regulations that I’m sure the respective states would be more than happy to spend a legislative session filling. I say a year tops of uncertainty. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 2, 2012, 11:45pm UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/275 "2012-04-02T23:45:21Z")
> [@ElvisL1ves](#): > > That’s procedural, not statutory, so there’s no basic problem in leaving it. Or are you saying there could be a federal ACA program in some districts but not others? Yes, they had to resolve that. No, I’m just saying SCOTUS doesn’t have to grant review just because there’s a circuit split over a national law. > [@Saint\_Cad](#): > > Then how about \*Brown \*because I think the disruption it caused overruling \*Plessy \*far outweighs what overturning \*Wickard \*would do. In fact, overturning \*Wickard \*would probably not be as disruptive as people think as it would create a vaccuum of regulations that I’m sure the respective states would be more than happy to spend a legislative session filling. I say a year tops of uncertainty. Brown didn’t overrule Plessy. It narrowed it to the extent that it did not apply in public education. Anyway, while I’m sure lots of states would be happy to fill the vacuum of legislation, state legislatures are pretty useless, and you’re talking about 60 years of federal legislation, much of which has no analogue in state law (and some of which states have no authority to legislate over). Try 20 years, minimum. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 3, 2012, 12:44am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/276 "2012-04-03T00:44:27Z")
> [@yorick73](#): > > There is no need to narrow the scope of _Wickard_. The court never touched on the subject at hand which is forcing an individual to purchase something. Health insurance isn’t a tangible “something” like a car or broccolli. It’s a means of paying for something everyone is going to use at some point, that being health care. The individual mandate is a small, but necessary, part of the larger ACA act, not simply a “lets make people buy insurance” as a goal. The regulation is a means to the larger ends and it doesn’t require the purchase of an item, it rather sets the time and means of paying for an item that everybody is going to use anyway. And if you choose not to purchase health insurance, you will simply have to pay money to the government to cover the costs if you do not have the ability to pay for your health care costs in the future. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 3, 2012, 12:50am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/277 "2012-04-03T00:50:38Z")
> [@Hamlet](#): > > Health insurance isn’t a tangible “something” like a car or broccolli. It’s a means of paying for something everyone is going to use at some point, that being health care. The individual mandate is a small, but necessary, part of the larger ACA act, not simply a “lets make people buy insurance” as a goal. > > The regulation is a means to the larger ends and it doesn’t require the purchase of an item, it rather sets the time and means of paying for an item that everybody is going to use anyway. And if you choose not to purchase health insurance, you will simply have to pay money to the government to cover the costs if you do not have the ability to pay for your health care costs in the future. No one denies that it is well-intentioned, and might even be a good idea. But it is the federal government requiring/“forcing” people to purchase something with the threat of a penalty if you don’t. Prettify it all you want, the Constitution does not one of the federal powers listed in the Constitution. Now, there might be a way to justify this via the ICC, but that’s just compounding what was already a dumb-ass decision. ---
**Author:** ![Nothar](https://avatars.discourse-cdn.com/v4/letter/n/ce73a5/32.png) [@Nothar](https://boards.straightdope.com/u/Nothar)\ **Post date:** [April 3, 2012, 1:03am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/278 "2012-04-03T01:03:04Z")
Not to get into the ongoing debate too much but just wanted to ask a question. Am I the only one who knows people who have never used the health care system? Everyone keeps saying that all people will use the health care system at some point in their lives, but I’ve known people from birth to death who never saw a doctor, hospital or drug. That includes their birth and their death. No vaccinations, etc. Maybe its just because I grew up in a very rural area. ---
**Author:** ![The\_Tao\_s\_Revenge](https://avatars.discourse-cdn.com/v4/letter/t/73ab20/32.png) [@The\_Tao\_s\_Revenge](https://boards.straightdope.com/u/The_Tao_s_Revenge)\ **Post date:** [April 3, 2012, 1:16am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/279 "2012-04-03T01:16:32Z")
> [@Nothar](#): > > Not to get into the ongoing debate too much but just wanted to ask a question. Am I the only one who knows people who have never used the health care system? Everyone keeps saying that all people will use the health care system at some point in their lives, but I’ve known people from birth to death who never saw a doctor, hospital or drug. That includes their birth and their death. No vaccinations, etc. Maybe its just because I grew up in a very rural area. It’s hypothetically possible, and I’m not disputing your antidote, but most people end up needing medical treatment. It might be a broken bone, an appendix, a virus, a gushing wound, a car accident, a dog bite, a burn, a fight, etc. The human body is both very resilient and very delicate. There’s a reason average life spans drastically increased with the rise of medical care. Further vaccinations are a function of the healthcare system. People who don’t get vaccinated not only endanger themselves but they increase the risk of others with compromised immune systems. So there isn’t an absolute law of healthcare, but one would have to have superb luck and a reckless disregardful for theirs and others safety. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 3, 2012, 1:23am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/280 "2012-04-03T01:23:22Z")
> [@magellan01](#): > > No one denies that it is well-intentioned, and might even be a good idea. Great. Not my point, but nice to hear anyway. > [@magellan](#): > > But it is the federal government requiring/“forcing” people to purchase something with the threat of a penalty if you don’t. Once again, the regulation is to set the timing and method of payment for something (heath care), not health insurance itself. You don’t have to buy health insurance, but if you don’t, you have to pay into the government to cover the costs if you are unable to pay for health care yourself when you use it in the future. > [@magellan](#): > > Prettify it all you want, the Constitution does not one of the federal powers listed in the Constitution. It’s not “prettifying” it, it’s stating what the program is for. It’s not to make people buy insurance, it’s to regulate how and when people pay for their future health care needs. When you buy health insurance, you don’t have a tangible thing, you don’t have an appendectomy, Viagra pills, or a cast for you arm. What you have is a promise from somebody that they will pay for certain things should you require them in the future. That’s what insurance is. Health care and how it is paid for, is a huge part of interstate commerce. Setting the rules on how health care will be paid for is well within Congresses power to regulate interstate commerce. Trying to compare it to buying a car or broccoli complete misunderstands what insurance is and how it functions. Sure it’s great to shout “The government is making you buys stuff!!!” but when you look at the actual legislation, it’s not about buying stuff, it’s about how health care should be paid for. Congress decided that the best way to try and curb the costs of health care and make a functional system is to require health insurance to cover most people (including those with pre-existing conditions) or the “Guaranteed Issue” part of the ACA. The individual mandate is, in the words of Congress, “essential” to making the rest of the ACA work, to make sure the health care for these people can be paid for individual mandate. It’s not to help out the insurance companies by making people sell them or to help out the government by getting more revenue. It’s to make the other parts of the ACA (Constitutional parts) work properly. It’s amusing to see a certain segment of the population who constantly raise the spectre of judicial activism and show concern that “the will of the people” be respected are now crying for the judiciary to refuse to defer to the method Congress adopted to regulate the health care industry. ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 3, 2012, 1:36am UTC](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961/281 "2012-04-03T01:36:54Z")
> [@Hamlet](#): > > Once again, the regulation is to set the timing and method of payment for something (heath care), not health insurance itself. This is false. You must buy health _insurance_, or the government will access a penalty. If you think you’re right, please point to the language in the law that says you must spend money on healthcare. In fact, under the law (or, indeed, outside of it), one could buy health insurance and never spend a penny on health _care_. > [@Hamlet](#): > > You don’t have to buy health insurance, but if you don’t, you have to pay into the government to cover the costs if you are unable to pay for health care yourself when you use it in the future. Again, that’s false. First, you must buy health insurance or suffer a penalty. Two, if you do not buy health insurance, you are assessed a penalty whether or not you are able to pay for it in the future. Or if you ever use it. > [@Hamlet](#): > > It’s not “prettifying” it, it’s stating what the program is for. It’s not to make people buy insurance, it’s to regulate how and when people pay for their future health care needs. When you buy health insurance, you don’t have a tangible thing, you don’t have an appendectomy, Viagra pills, or a cast for you arm. What you have is a promise from somebody that they will pay for certain things should you require them in the future. That’s what insurance is. Yes, and that is why it’s called insurance. As you just correctly categorized it as. Finally. You want to have it both ways. But any attempt to change the language in order to have it not be considered what it is—insurance—is simply playing semantic games. And no one has enough prettification skills to have that make plain sense. [Previous page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=13) [Next page](https://boards.straightdope.com/t/justices-signal-possible-trouble-for-health-insurance-mandate/616961.md?page=15)