March 26 — Republicans For Mandating Coverage (RMC) — a 51-member coalition representing Republicans who supported a federal health care mandate before President Barack Obama endorsed it — urged the Supreme Court on Monday to uphold the constitutionality of the Affordable Care Act’s individual mandate:
As Republicans who have co-sponsored or supported legislation requiring all Americans to purchase individual health insurance in 1993, 1994, 2007, and as recently as 2009, RMC believes that the mandate is based on the fundamental American principle of personal responsibility, rooted in conservative jurisprudence surrounding the Constitution’s Commerce and Necessary and Proper clauses.
In the words of Former Massachusetts Governor Mitt Romney, Republicans “don’t think the free market ever envisioned an idea that people would be able to do something and make other people pay for it.” “People are either going to buy insurance or they’re going to pay for their own care. They’re not going to say, ‘I got care and you Mr. Tax Payer or You Mr. Premium Payer are going to pay for me.”
‘Republicans For Mandating Coverage’ believes that this is an “American principle” — a principle of “personal responsibility” — that can be constitutionally enforced by the federal government.
Since nearly all Americans are already part of the health care marketplace and health care affects 17 percent of the economy, Congress is authorized to regulate health care behavior under the Commerce Clause. As conservative Judge Laurence Silberman put it: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’ In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market.”
The Supreme Court can also find justification for the mandate in the Necessary and Proper Clause. In Gonzales v. Raich, the Supreme Court decided not to strike down a provision of law when that provision is an “essential part of a larger regulation of economic activity.” Justice Antonin Scalia explained in a concurring opinion that “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” The Affordable Care Act fits Justice Scalia’s rule. The act prohibits insurers from denying coverage to patients with pre-existing conditions. This ban cannot function, however, if patients can enter and exit the insurance market at will. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing for the rest of the plan’s consumers. Thus, a requirement that most individuals obtain insurance before they become ill is an essential part of the act’s overall regulation of the insurance industry — or, to use Justice Scalia’s words, it is needed to make the laws insurance regulations effective. ‘Republicans For Mandating Coverage’ believes that ending the government’s role in providing free uncompensated health care to able bodied Americans who can and should pay for their own care, will shrink the size of the federal government, boost the economy, and free taxpayers from the burden of paying for uncompensated medical procedures. Republicans have promoted personal responsibility before the president and the Democrats ever did and today we continue to stand tall for this Constitutional principle.
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