More on Mandates and Lawsuits
In light of yesterday’s arguments at the Fourth Circuit Court of Appeals, it’s worth pointing out a few key issues. First, as yesterday morning’s CongressDaily noted, the federal government appears to have changed its argument when it comes to defending the individual mandate. Rather than attempting to say that Congress can regulate the “inactivity” of purchasing health insurance, the Solicitor General is now arguing that the individual mandate is regulating the decision to purchase health care. As Georgetown University law professor Randy Barnett noted in the article, the change in strategy suggests the Administration “decided the earlier argument wasn’t working so well.”
Second, HHS’ Office of Planning and Evaluation released a report yesterday discussing the lack of ability by the currently uninsured to pay hospital bills – a report that the Administration will doubtless use to justify the individual mandate on the basis of uncompensated care costs incurred by hospitals. There’s just one problem with that strategy however: The head of HHS’ Office of Planning and Evaluation previously published an article in April 2008 in which she stated that “the magnitude [of uncompensated care] is quite small,” and that the “most important benefit of mandates is symbolic.” It’s worth noting the cognitive dissonance of an HHS office that released a report undermining assertions made by its head just three short years ago. Just as important, as has previously been noted, some may question why the Administration is imposing this unprecedented mandate on Americans in order to have a “symbolic” effect on solving a “quite small” uncompensated care problem.
Finally, the Yale Law Journal recently published an article supporting the individual mandate. The article calls constitutional objections to the mandate “silly,” and then proceeds with this modest assertion: “There may be no need for judicially imposed limits on Congressional power.” So not only is the idea of a constitutional objection to government forcing individuals to buy a product “silly,” apparently the entire notion of limited government is as well.