False Arguments in Favor of the Mandate

There are serious arguments in support of the constitutionality of the individual mandate (just as there are serious arguments against it).  There are also quite a few bad arguments, and quite a few that rest on patently false premises.  A common example of the latter is that the mandate does not require anyone to engage in commercial activity because all Americans will, in one way or another, eventually engage in health care markets.  This is not true.

Here’s an example.  Walter Dellinger, in  today’s Washington Post, asserts: “The mandate does not force people into commerce who would otherwise remain outside it.”  This is false, as Dellinger’s essay effectively acknowledges when it goes on to note that health care is “an activity in which virtually everyone will engage.”  This latter statement may be true.  ”Virtually everyone” may acquire health care — but “virtually everyone” is not “everyone.”  Most people may purchase health care at some point in their lives, but some will not.  Some people will refuse to purchase health care for religious reasons.  Some will not purchase health care because they are lucky enough not to need such care before a sudden death. Still others may decide not to purchase health care because they have chosen to remove themselves from commerce — consider a survivalist or other person who decides to live in a shack, growing their own food, and not engaging in commerce with others.  All but the former are forced to enter into commerce who “would otherwise remain outside it.”  Indeed, under Cruzan, there is a fundamental right to refuse even life-saving health care.  Therefore, the government cannot assume that each and every person will, at some point, use (let alone purchase) health care, as every American has the right to decide otherwise.  These facts clarify the nature of the legal case for the mandate.  Specifically, that some Americans could otherwise refrain from entering health care markets means that, in order to sustain the mandate the Court must conclude that in order to regulate commerce in which most Americans engage, the federal government has the power to force all Americans to engage in it.

Dellinger goes on to say that “”people who go without insurance often shift the costs of their health care to other patients and taxpayers. That situation is different from what happens with any other type of purchase.”  This latter claim isn’t true either.  Those who fail to acquire adequate levels of disaster insurance “often shift the costs” of disaster assistance on to others, as the federal and state governments regularly provide assistance to disaster victims above and beyond what their insurance provides.  And yet the federal government does not mandate the purchase of flood or other disaster insurance.

That there is some number of people, however small, who would otherwise not engage in health care markets and that there are other contexts in which the under-insured shift costs on to others do not establish that the mandate is unconstitutional.  But the persistence of arguments that rest on false premises is further evidence that the individual mandate case is not as easy as some like to suggest.  After all, if this were such an easy case, advocates would not need to stretch the facts or make false claims to make their case.