Yes Virginia, there is an interstate commerce clause. And there may yet be coal in your stocking.
As you no doubt know already, Judge Hudson found that Congress could not order individuals to buy health insurance.
In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress's power to regulate interstate trade.
"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]
This will largely be reported on and discussed relative to its impact on the continued viability of the Patient Affordability Act (aka “health care reform” aka “ObamaCare) – and that’s an important conversation for the 112th Congress and others to have. But there’s a more urgent public health imperative: uninsured, healthy young adults.
Not that the legislation, as passed, would have accomplished anything significant about driving young, healthy people into the insurance pool. The anemic penalties actually disincentivize youthful participation. After all, why not pay a monthly penalty (less than even a very affordable monthly insurance premium) if, when you do face a medical emergency, you can’t be turned down or charged more?
Judge Hudson didn’t use this in any way relative to his ruling – but his ruling does give us another bite at the “young, health and uninsured” apple.
And bite we must.
If we cannot bring healthy young adults (and, for that matter, healthy adults writ large) into the insurance pool, coverage costs will increase -- and fast. As more people with pre-existing conditions are brought into the insurance system (via state insurance exchanges, vouchers, etc.), costs will skyrocket. The curve will be bent alright – in the wrong direction.
Thanks to Judge Hudson we have a chance to revisit a better way to address this situation – insurance regulatory reform.
A study by University of Minnesota economists Stephen Parente and Roer Feldman shows that Congress could boost by more than 12 million the number of people who have health insurance without spending taxpayer dollars. The change required is to allow people to buy health insurance across state lines, so they can shop for less expensive policies. For example, a typical health-insurance policy in heavily regulated New York costs more than three times as much as in less regulated Iowa ($388 a month versus $98 a month for the same coverage).
The penalty “stick” (whether you like it or not) will not even be an option if Judge Hudson’s ruling stands. So we’d better start looking for some carrots – and lower cost policies is a particularly juicy one. But that must also be paired with a strong public awareness campaign. As any expert in behavior modification will tell you, the best way to get people to do something you want them to do is to make them understand why it is in their best interest to do so.
And the sooner the better.
