Wednesday, September 14, 2011

Yet again, a court declares individual mandate unconstitutional

In the latest of a long string of court decisions addressing the constitutionality of the Patient Protection and Affordable Care Act (ACA), the U.S. District Court for the Middle District of Pennsylvania has decided that the ACA's minimum essential coverage provision, also known as the individual mandate, exceeds Congress' authority under the Commerce Clause (Goudy-Bachman v. United States Department of Health and Human Services, No. 1:10-CV-763, September 13, 2011). The court added that the ACA did not have to be thrown out in its entirety, and that the individual mandate provision could be severed from the ACA as long as the guaranteed issue reform and the preexisting condition reform were severed along with it, since the individual mandate was a funding source for those provisions.

The guaranteed issue provision states that health insurers may not deny coverage on the basis of various health status factors, such as medical condition or history, disability, or genetic makeup.This guarantees that everyone who applies for coverage will be accepted. The preexisting condition reform provides that insurers may not limit or deny coverage on the basis of a pre-existing medical condition. The rest of the ACA, the court advised, should be left intact.

The plaintiffs were a married couple, self-employed, with two children, and no health insurance. They had apparently been paying their medical bills out-of-pocket, and claimed that they had to drop their health insurance because their monthly premiums were unaffordable, and totaled more than their mortgage. The court pointed out that they had met the requisite standing requirements, showing an injury in fact when they asserted that they had to put off the purchase of a new car in order to save money for the ACA's required purchase of health insurance in 2014.

Judge Christopher Conner conceded in his opinion that the United States is certainly facing a health care crisis, and added that, although Congress intended that the individual mandate be enacted under its Commerce Clause power, "nothing prohibits Congress from redoubling its efforts and invoking another enumerated power, such as the Tax and Spending address the uninsured free rider issue." Judge Conner declined to engage in the current somewhat hysterical warnings from certain sectors of society and from some previous court decisions, which have claimed that allowing Congress to require the purchase of health insurance would effectively turn the U.S. into a socialist state, and grant Congress infinite power to mandate the purchase of an unlimited numbers of goods and services, and simply stated that the individual mandate cannot withstand Constitutional scrutiny.

The court stated that, although the individual mandate represented an unprecedented use of Congress's Commerce Clause power, that was not the reason it was finding the individual mandate to be unconstitutional, and that it was, in fact, according respect to the Congress's rationale in passing it. The court also stated that it was rejecting the distinction of activity and inactivity in the health care market for purposes of Commerce Clause analysis, characterizing those particular distinctions and "imprecise and unhelpful." Various plaintiffs have tried to use that characterization to allege that the government is not regulating activity, but, instead, is impermissably regulating mere inactivity, or a lack of participation in the health care market.

The court then held, however, that it was problematic that the individual mandate in many instances regulates those who have not yet, and may never, enter the health care market. The court found that, until an individual both obtains health care services and fails to pay for them, that person's status has no effect whatsoever on interstate commerce. Thus, it said, the individual mandate impermissably regulates now for anticipated future conduct. Furthermore, the court rejected the government's argument that the market timing of the individual mandate should be allowed because of the uniqueness of the health care market, pointing to the Goudy-Bachman's argument that, in a sense, every market is unique in some way.
The court adopted the Eleventh Circuit's rationale regarding the government's Necessary and Proper approach to Commerce Clause analysis in Florida ex rel. Attorney General v. United States Department of Health and Human Services, F.3d, 2011 WL 3519178 (CA-11) 2011. In that case, the HHS had argued that the individual mandate was necessary to effect a larger regulatory scheme. The court rejected that argument, and held that the purchase of insurance required by the individual mandate did not burden or obstruct Congress's ability to enforce regulation of the health insurance industry, and that, just because the individual mandate was placed within a broader regulatory scheme did not mean it was essential to that scheme.

For more information. For a comprehensive analysis of the Patient Protection and Affordable Care Act, and additional information on health reform and other developments in employee benefits, just click here.


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