The online legal resource SCOTUSblog, which follows the U.S. Supreme Court, is holding an online symposium on an issue that figures prominently in the fate of Florida health policy: the constitutionality of the federal health reform law.
“„The public debate over the constitutionality of the individual mandate tends to focus on whether it is a permissible exercise of the power to “regulate commerce . . . among the several states.” This is no surprise. The commerce power is the most used and most expansive federal power. Fights over the scope of the Commerce Clause take place on familiar terrain. In the end, however, the constitutionality of the mandate is likely to turn on the scope of a less explored provision, the Necessary and Proper Clause. #
“„With health reform, the “legitimate end” relied upon is the regulation of the health insurance market. But is the mandate a means “plainly adapted” to achieve this end? A mandate to buy insurance is not a method of regulating insurance at all; it is a regulation of individual conduct. The individual mandate does not regulate health insurance in the same way as, for example, a ban on excluding pre-existing conditions or eliminating lifetime coverage limits. The mandate commands, “Thou shalt buy insurance.” This may help sustain the solvency of the health insurance market, especially since the law’s market reforms made health insurance a very expensive and risky thing to underwrite. But the individual mandate itself is not a means of regulating insurance qua insurance. #