Defenders of the mandate declare that because the health care market is fundamentally different than other markets, Congress has the ability to mandate people buy insurance. I have been struggling with this for a while, trying to figure out exactly how it being a different market affects its constitutionality.
In today's opinion pieces I found Noah Feldman's take which offers an answer.
The answer is that health care insurance is different because if the healthy people fail to get themselves coverage, it becomes extremely difficult -- under some conditions, impossible -- for the insurance market to operate.
Really, though, if healthy people fail to get themselves coverage, it becomes extremely difficult for the insurance market to operate as they want it to operate--namely that low risk insurees subsidize high risk insurees. Of course, this is only the case when community rating is required. If insurers could charge insurees according to their risk, the very sick could still get covered, but they would pay a much higher price.
Still, even if we grant this argument I haven't found the connection to constitutionality. Suppose there was no mandate, but there's still community rating, now there is no insurance market. So what? There are presumably many markets that don't exist, especially insurance markets. Does Congress have the ability to create those markets by forcing everyone to buy those goods?
In what is the real crux of their argument, Feldman says, "The government can penalize inaction only when that inaction deprives everyone else of a public good." The public good in this case, I suppose is health insurance? I don't know how he defines a public good.
I expect pro-mandaters to say that everyone has a right to health care, and it's too expensive to afford on one's own so everyone has a right to health insurance. Conservatives eschew a public option so we have to ensure the existence of private insurance that can cover everyone. To do that, we must have a mandate.
Is this the argument?
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