EDMUND BURKEI listened to today’s argument in the Supreme Court about whether the individual mandate in the Affordable Care Act (ACA) is constitutional. As the challengers to the Act frame the issue, the question is whether Congress has power, under the Commerce Clause, to compel someone to enter into commerce. Once someone enters into commerce, they say, Congress may regulate his or her activity; but Congress cannot force someone to enter into commerce. The ACA requires individuals to purchase health insurance whether or not they wish to do so. That is beyond the power of the federal government. State governments may have such authority under their police power – the authority to provide for the health, safety, and welfare of their citizens – but the United States is a government of limited and enumerated powers, and the power to regulate interstate commerce cannot include the power to enter into a market. That is the essence of the challengers’ argument.
The federal government argues that because most people are going to consume health care sometime – at times they can neither predict nor control – Congress has appropriately created a mechanism to require them to pay for the care they will inevitably consume. If they don’t have health insurance, they will not be able to pay for health care when they receive it, and the costs they incur will be foisted off on other citizens in the form of higher insurance premiums and taxes. In Commerce Clause terms, it is appropriate to require people to purchase health insurance because they will consume health care, and the health care and health insurance markets are “inextricably intertwined.”
The challengers – and some of the justices – argued that if the federal government can compel people to buy health insurance, it can compel people to buy burial insurance to ensure that they pay for those costs. The federal government could even compel people to buy broccoli on the theory that consuming broccoli will improve public health and thus reduce health care costs. There is no limiting principle, argue the challengers, and once Court says that the Commerce Clause gives the federal government the power to require people to purchase goods and services, there is no end to what the federal government might do. If the national economy suffers from slow car sales, the federal government would be empowered to require people to purchase cars.
It seems to me that the argument that health care and insurance are “inextricably intertwined” misses a subtle but critical point: Health care and health insurance are not inextricably intertwined markets. They are, in reality, the same market.
My dictionary defines a market as: “A public gathering held for buying and selling merchandise....The business of buying and selling a specified commodity....The entire enterprise of buying and selling commodities and securities.” The American Heritage Dictionary 1071 (4th ed. 2000)(definitions 1, 4a, 6b). The point is that a market includes the buying and selling of goods or services, as well as negotiation between buyer and seller.
Health care is principally – indeed, overwhelmingly – paid for through insurance. Health care is the delivery side of the market; health insurance is the payment side of the market. A market necessarily includes both the delivery of goods and services and the payment for those good and services – that is what makes a market a market.
In the world we live in today, health care is both essential and potentially extremely expensive. That’s why it is paid for through insurance. Justice Alito likened burial insurance to health insurance, but it’s a flawed comparison. Consumers have considerable control over burial costs. Whether one purchases a simple, unfinished oak casket or a mahogany casket with silver handles is a choice. It may be a difficult choice – the funeral home may take advantage of a family’s grief to sell them an expensive burial – but it is a choice nonetheless. One may choose to be buried in a very inexpensive cardboard casket or even a simple shroud. One may purchase a plot in a cemetery or avoid that cost through cremation. By contrast, consumers often have no choice over either the health care they will consume or the cost of that care. Someone who is hit by a truck or rendered unconscious by a heart attack may consume tens of thousands – even hundreds of thousands of dollars – of health care costs before he wakes up. I don’t know what portion of funeral and burial costs are paid for through insurance, but I am confident it is nothing like the portion of health care paid for through insurance. (I do know that burial costs do not consume close to twenty percent of the Gross Domestic Product, and the nation is not facing a crisis in rising and uncontrollable burial costs.)
Broccoli is also a false comparison. Food is essential, but it is not paid for through insurance. In America, food is largely paid for at the point of sale. Recognizing the realities of this market, the federal government assists those who need help through the food stamp program.
That health care and health insurance market comprise one market is also evident in the fact that negotiation over the cost of health services takes place – not between provider and patient – but between insurer and provider.
Health care may not be unique. Automobile insurance is similar in some essential respects. Of course, requiring people to purchase auto insurance differs from health care in that the requirement is imposed (1) by state governments, and (2) only on people who choose to own cars. But automobile accidents, like health care costs, are inevitable, unpredictable, and potentially very expensive, and are therefore paid for principally through insurance. One of the justices raised this example in today’s argument, and one of the challengers’ attorneys pointed out that the states can compel citizens to purchase auto insurance under their police power while the federal government is limited to its Commerce Clause power. Fair enough. But if one or more states did not mandate automobile insurance, does anyone doubt that the federal government could properly do so under the commerce power?
Does it make a difference if we say health care and health insurance are inextricably intertwined markets or a single market? Perhaps it shouldn't. But recognizing that health care and health insurance are truly one market makes it easier to see that the federal government is not compelling citizens to enter into commerce by requiring them to purchase health insurance. Health care is nearly as inevitable as death and taxes. Everyone is in the purchase side of the market because everyone will inevitably consume health care. (As a group, some receive health care every day.) The Affordable Care Act simply requires individuals to participate in the payment side of a market that they are already in. The limiting principle is this: The health care/insurance market may not be unique, but it is, at a minimum, highly unusual.