As of today, 14 state attorneys general have promised to file suit in federal court in Florida, (they haven't, yet) against the individual mandate in the Patient Protection and Affordable Care Act, arguing that it's an unconstitutional intrusion on state sovereignty.
The argument has no merit, but that won't stop the GOP from trying to make political hay out of it for a while. Some of your family members and co-workers will buy into the framing of the argument, and if you want to bring them down a notch, I've got the tools for you.
In the interest of fair disclosure, I'm a researcher serving the insurance industry, and so I have a unique understanding that the individual mandate that is a necessary part of the foundation of our hard-won reforms.
I know there are some on our side who don’t understand the individual mandate and why it needs to be there. Simply put, having guaranteed universal coverage without the individual mandate is like having a fine car with a fine engine, but no transmission. You can’t use it without both. The individual mandate is the necessary yang to the ying of no more exclusions for those with pre-existing conditions. That is, if we are going to let all the sick people get coverage without rejection, and with limits on how much they have to pay in premiums, we have to have healthy people buying insurance too, in order to offset the expenses of the sick. That's what insurance, in all its forms, is -- the pooling of risks, both good and bad, to offset the effects of an unforeseen, high-cost event.
The individual mandate will clearly pass legal muster because its provisions are not absolute. Per Sec. 1332, states can opt out as long as they provide residents with a plan that is budget-neutral for the federal government, provides members with qualified health plans that are equivalent to the federal requirements, and offer choice and competition through exchanges. The opt-out, I have to figure, was designed in precisely to forestall a constitutional challenge.
The state-AG suits have, in legal terms, "no cause of action," and will be thrown out by the first judge they go before. The resources used to carry on these Quixotic exercises in political grandstanding are a waste of taxpayers' money at a time when states are cutting essential services to balance budgets.
Furthermore, I can think of a number of situations in which the government requires you to make a purchase from a private -- even a for-profit -- company, or face a penalty.
- The Ambassador Bridge: The bridge that links Detroit to Windsor, Ont., Canada, is owned and operated by a private, for-profit company. This is the single busiest crossing between the U.S. and Canada. I can't quote the penalties for failing to pay the toll, but I believe they are up to and including some jail time. Not to mention the immigration and/or customs hot water one would be in.
- The Unified Carrier Registration Agreement: The UCRA program requires that all motor carriers, brokers, freight forwarders, and leasing companies who operate in interstate or international commerce must pay an annual fee. Thirty-eight states are party to the agreement. Fees for registration are submitted to a private vendor/contractor with the moneys redistributed to states (after the vendor keeps a fee) for safety programs, road improvements, etc. Failing to register via the UCRA subjects the driver to a $300 fine per incident, and a single driver can incur fines in every jurisdiction he drives through, so a single trip through four states can incur four fines.
3)Community Probation Departments: The probation departments in many jurisdictions around the country have been turned over to private contractors, with the for-profit Providence Service Corp. among the largest. Folks sentenced to probation must not only pay the fine for their offense, which is collected by the probation company, but the fees for the probation company as well. The penalty for failing to do so is JAIL! Any Republicans out there want to weigh in on how this stands vis-a-vis freedom?
- Any other privatized government function: As we can see with Nos. 2 and 3 above, the consequence of privatizing government functions, while not inherently bad, is the creation of a situation whereby government forces an individual to purchase a good or service from a private company, or face a penalty. The precedent has been set.
I am not a lawyer, so I can't tell you if any of these government privatization efforts have been challenged legally, but if we want to game this all out to a worst-case scenario where the Supreme Court agrees with the state attorneys general and rejects the idea of forcing people to buy something from a private company, then the next logical consequence would be an unraveling of ALL contracts in service of privatization of government functions. Since privatization seems to be a standing proviso of Republican dogma, they may want to reconsider their position.