PPACA: Can a Nick Pop It?

The mandate would require legal residents of the United States who have income over a certain threshold, who can buy coverage that meets federal affordabability criteria, and who have no religious reason not to own coverage to own coverage or else pay a penalty.

America’s Health Insurance Plans (AHIP), Washington, and some health policy experts familiar with health system change efforts in Massachusetts have argued that a tough individual health insurance ownership mandate is critical to efforts to make coverage available on a guaranteed-issue, mostly community-rated basis.

If the government does not impose a mandate, many individuals will avoid buying coverage, and they will count on kind-hearted doctors to take care of them if they suffer from serious, expensive-to-treat health problems, AHIP and others say.

Many civil liberties groups, libertarian groups and conservative groups argue that the U.S. Constitution gives the federal government no authority to make individuals buy a product and rarely gives the federal government direct authority to make individuals do anything else.

The federal government can draft soldiers, and it can make people pay taxes, but that is because the Constitution includes provisions that explicitly give the government to draft soldiers and levy taxes, PPACA opponents say.

The federal government is arguing that it has the right to collect money from individuals who fail to own health insurance because the collection would simply be another tax. Opponents have noted that PPACA supporters originally described the penalty provision as a tax provision, then took out the word “tax” to make the bill more palatable to lawmakers thinking about voting for it. PPACA supporters should not be able to call the penalty a tax today if they intentionally eliminated use of the word from the PPACA bill to get the bill through Congress, provision opponents argue.

At least two judges already have taken active steps to let PPACA constitutionality suits proceed, Marathas says.

Democratic congressional leaders shepherded PPACA through the Senate and then got the bill through the House around the time Sen. Scott Brown, R-Mass., took over the Senate seat of the late Edward Kennedy. To avoid having to get a bill approved by a conference committee through the Senate, Democratic leaders skipped the conference committee stage and sent the bill approved by the Senate directly through the House.

A conference committee typically would go over a bill carefully, correct any obvious problems and take steps such as adding a severability clause stating that the bill as a whole would still be valid even if the courts invalidated parts of the bill, Marathas said.

PPACA never went through a conference committee, and a severability clause was never added, he said.

The courts might invalidate the individual health ownership mandate or other parts but let many other parts stand, Marathas said.

“I don’t buy arguments that this is a slamdunk,” Marathas said.

But Marathas said it is not easy to think of a major court case that deals with the invalidation of a large, multi-part bill that lacks a severability clause.