Let's say for the sake of argument that Democrats in Congress are able to get health reform legislation to President Barack Obama's desk. Will the key element–a mandate for everyone to buy insurance coverage–withstand a Constitutional challenge? I have my doubts.
This point is critical to the success of the entire reform initiative, yet I can't help but wonder whether the conservative majority on the U.S. Supreme Court would permit the federal government to demand that every citizen hand over their cash to for-profit health insurance companies.
Given the fact that the bill requires carriers to offer coverage to all comers–even those with preexisting medical conditions–we must have mandatory coverage. Otherwise, healthy folks could simply wait until they become ill before buying coverage.
Of course, such scams could be avoided if health insurers are permitted to charge whatever they think is proper for coverage. If someone shows up with a serious diagnosis, that individual could end up being priced out of the market.
But I doubt that's how this reform plan will work. I don't see the point of Uncle Sam insisting that insurers offer everyone coverage no matter what their medical condition might be, but then allow insurers to charge so much that buying a policy isn't feasible. Indeed, President Obama is already pushing for federal rate oversight.
So that brings us back to the mandatory purchase provision. Opponents have promised court challenges. It will take years to work such suits up to their logical destination–the U.S. Supreme Court.
But since many components of the bill do not take effect for a few years, we might actually have time for these lawsuits to play out before the most controversial provision–mandatory purchases–goes into effect.
Some may argue that state governments routinely require drivers to buy auto insurance and make businesses buy workers' comp coverage. But in both cases, citizens have a way out. People don't have to own a car, or open a business, if being forced to buy insurance is so objectionable to them (or unaffordable).
In addition, some may argue the government already requires you to buy health insurance by deducting money from your paycheck to fund Medicare coverage. But that is a tax to generate funds for a government-run program, not a private insurer. There is a big difference between pooling money in a taxpayer entity and being told you must pay premiums to a for-profit firm that gives millions to its executives, including hefty bonuses.
Since the public option won't pass this time around, that means the mandate will force people to fork over their money to the very insurers they love to hate. That is going to be a hard point to sell for the Democrats.
Would the Supreme Court rule that Washington stepped over the line in ordering everyone to pay private companies for health insurance? Or would the court say that since people do have an "option"–paying a fine instead of buying coverage–the law passes constitutional muster?
Of course, if the high court eventually rules that Washington exceeded its authority with its health insurance mandate, that could ultimately backfire on reform opponents.
With millions more likely to be uninsured at that point, such a ruling could give Democrats the justification they need to finally create a public option, financed by payroll deduction–in essence, the Holy Grail of health care reformers: Medicare For All!
What do you folks think?
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