Good Question: Can Health Insurance Be Required?

By Jason DeRusha, WCCO-TV

— The U.S. Senate blocked an effort by Republicans to repeal President Obama’s health care bill Wednesday, but the future of the law is still in jeopardy. A federal judge on Monday ruled it unconstitutional, because of the mandate that individuals buy health insurance.

“If people are challenging the constitutionality of the government requiring us to buy health insurance, then should requiring us to buy car insurance be challenged as well?” asked Tom Wilmar from Plymouth.

So, what is the difference?

“In terms of differences, one is who’s requiring us to do it,” said Professor Amy Monahan, who’s been researching health care law at the University of Minnesota School of Law. “Characterizing it as messy is a good way to characterize it.”

States force us to buy car insurance. According to Monahan, they probably could force us to buy health insurance.

“They’re allowed to broadly regulate health, safety and welfare,” she said.

However, the federal government has more limited powers under the Constitution.

“We’ve never seen a structure like this in terms of what the federal government is trying to regulate,” according to Monahan.

The federal government does have the power to charge individuals taxes, and some have characterized the health care law as that. If people have affordable health care as an option and choose not to buy it, they pay a fine.

“The judge in Florida said you can’t treat this as a tax,” she explained. “It’s not raising revenue. This is really about making people buy health insurance.”

So, it comes down to the Commerce Clause of the Constitution. The federal government has the power to regulate interstate commerce.

“Preeminent constitutional scholars reconfirmed that the Affordable Care Act is firmly rooted in the Commerce Clause of the Constitution,” said Sen. Al Franken (D-MN). “We need to move past baseless challenges to the constitutionality of health care reform.”

But the question isn’t clear to Monahan.

“Is being uninsured an activity that can be regulated, or is it inactivity?” she asks.

Back to the car insurance analogy: driving a car is a choice, and getting insurance is a condition of being able to make that choice. But can the government require people to buy health insurance as a condition of living?

“That gets to the crux of the issue,” said Monahan.

She said that proponents of the health care law argue that by not buying health insurance, people are making an active choice to essentially self-insure. And that choice does affect interstate commerce, which makes it eligible to be regulated by the federal government.

“The Supreme Court will likely have to decide,” said Monahan.

More from Jason DeRusha

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