Should You Have to Buy Health Insurance? 2 Attorneys General Debate

BY Sarah Clune and Ryan C. Brooks  March 22, 2012 at 4:48 PM EDT


Attorneys general Ken Cuccinelli of Virginia and Martha Coakley of Massachusetts

Next week, the Supreme Court will hear arguments about whether the 2010 health reform law is constitutional. At the forefront will be the question of whether Congress has the right, through the commerce clause, to mandate the purchase of health insurance.

Last month, two state attorneys general traveled to Washington, D.C., for a debate on the issue at the National Press Club. Massachusetts Attorney General Martha Coakley, whose state implemented a precursor to the national health reform law in 2006, argued in favor of the individual mandate. Virginia Attorney General Ken Cuccinelli — a national leader in the fight against the law — said that it impedes freedom of choice and is not within the bounds of federal power. Instead, he insists, it is a measure that states should decide for themselves. Cuccinelli is leading Virginia’s health care mandate challenge, which is separate from the case before the Supreme Court this month.

Neither attorney general will argue before the court next week, but their arguments offer a handy cheat sheet of the fight to come. Find a condensed version of their major talking points below.

Is the bill justified?

COAKLEY: The only way for this Supreme Court to invalidate the individual mandate under the commerce clause is to reverse at least 70 years of clear precedent. … [W]e know as recently as 2005, restated in Gonzales v. Raich, that Congress can regulate activities that substantially effect interstate commerce.

The court’s task is only to determine whether the Congress had a rational basis for that conclusion for passing this bill. And again, it’s not just a theory. Look to Massachusetts. …

We’ve achieved a dramatic increase in access to health care coverage. There is strong support for Congress’ rational basis and their choice to require an individual mandate.

CUCCINELLI: Our argument was — and is — that the federal government can regulate commerce under Article 1, Section 8 — the commerce clause. However, they cannot command you into commerce. They cannot compel you into commerce.

And the federal government has never, ever under the guise of regulating commerce compelled Americans to buy a product or service. That has never happened in our history. In fact, it’s so historically unprecedented … There hasn’t been a case like this before the Supreme Court because the federal government has never attempted to exercise a power like this before.

What is ‘commerce?’

COAKLEY: Now with health care, every person in the United States has or will be involved in health care marketplace services. In fact in 2009 alone, over 80 percent of people in the United States were treated in our health care system in one year.

Congress has an interest in — and an ability — to require free riders to purchase coverage in a way that is necessary and proper for the overall marketplace.

My colleague will attempt to say that inactivity in the health care market isn’t commerce; I say with all due respect that he is wrong, and you don’t just have to listen to me.

CUCCINELLI: The federal government’s position is that your decision — your thought — to do nothing, you take no activity at all, is regulatable under the commerce clause as economic activity. And the phrase ‘economic activity’ is the phrase that shows up in the commerce clause cases since the New Deal.

If deciding to do nothing is the decision here that’s being compelled or overcome is your decision not to buy something, if that is a regulatable act, that is a regulation of no activity. … Because if you can do — if you can be ordered to buy this, you can be ordered to buy a car, buy asparagus, to buy a gym membership.

Should you have a choice to receive health care?

COAKLEY: So, I suppose if you are never going to the hospital and you never have a sore throat, and you never have gone to a doctor or emergency room — for your childhood or ever — I don’t concede that is correct, but for those people, that is a small percentage of people. … As I know it, over 80 percent of people even in 2009 used some kind of health care.

That’s my argument: that everybody is in the health care marketplace. Everybody uses some kind of health care — and will.

CUCCINELLI: The federal government has never identified a constitutional boundary for their power if the individual mandate is constitutional.

And my own view is, if they’ll order you to buy a car, it’ll be a GM car — they’ve got a little interest in that these days. And as Ronald Reagan said, if it stops moving, they subsidize it. The car that works is not the one that will get the help.

Can the federal government do this?

COAKLEY: The people we’re talking about who you say we can’t regulate because they’re not in the marketplace, the so-called ‘free-riders,’ are exactly the people who don’t have any of those choices because they don’t have health care insurance. Their only option is to go to an emergency room, and we don’t leave people at the emergency room door.

I think that we’re talking about a section of people who don’t have coverage, don’t have choices — that’s one of the goals of Congress — and the other people who can’t afford it but who decide to leave themselves insured, and then when they find they have a catastrophe, cancer or an accident they can’t pay for, we have to end up paying for it, so there is no such thing as a free care.

CUCCINELLI: The comment about behavior in the marketplace by the attorney general … I would suggest brings you right back to the notion of having to have activities to regulate rather than being able to compel the activities.

Medicare and Social Security are covered by taxing by the federal government and then spending for the general welfare. Auto insurance is a power the states have. The states may compel, as Massachusetts did, the purchase of health insurance. Because they have been left powers the federal government does not have. That’s why we have the 10th Amendment. That’s why we’ve limited the federal government’s powers. The states, I think universally, command you to purchase auto insurance as a condition of the privilege of having a driver’s license or driving on our roads. That is a states’ exercise of power, not a federal exercise of power.

For more on the issues at stake as the Supreme Court considers the constitutionality of health reform, tune in to the PBS NewsHour’s Thursday broadcast for a preview discussion with Marcia Coyle of The National Law Journal and Susan Dentzer of Health Affairs. Stay tuned to our website and broadcast from March 26 to 28 for full coverage and analysis from Coyle, Dentzer and health correspondent Betty Ann Bowser. And, of course, check back here often for more Web-exclusive content.

Have a question about the Affordable Care Act or the Supreme Court case? Ask them here and on Twitter using hashtag #HCRchat.