Scott Lemieux: “No, Mr. uninsured cancer patient, I expect you to die”:
The Republican opinions in NFIB v. Sebelius. Both Roberts’s opinion and the joint dissent argued that the federal government could regulate the health care market, which would seem to include guaranteed issue. But once you’ve conceded this, you’ve conceded everything. Even if one accepts the (highly unconvincing) argument that it’s impermissible to regulate “inactivity” directly… the necessary and proper clause as it’s been interpreted for nearly 200 years settles the question…. The responses on this point were particularly feeble. Roberts’s strategy was to invent a new distinction between “necessary” and “proper”:
Instead, Congress could reach beyond the natural limit of its authority and draw within its regulatory scope those who otherwise would be outside of it. Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective….
As Ginsburg pointed out at length, the unique nature of the health care market belies the assumption that this would create an unlimited new federal power:
[t]he inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets.
The mandate was tailored to a specific problem that doesn’t exist with most markets; to assert that this could be improper even if necessary is both incoherent and misunderstands the purpose of the regulation.
Perhaps understanding that trying to argue that a federal regulation could be “improper” while being “necessary” doesn’t make any sense, the joint dissent tries to argue that the mandate in fact wasn’t necessary:
With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance….
It is instructive that not included among the goals of the legislation is “expanded access to health care,” which tells you most of what you need to know…. Finally, this is just incorrect as an interpretation of McCulloch, which is clear that to full under the necessary and proper power, a provision need not be “necessary” in the sense of “there is no other possible way of achieving the same end”…. It’s up to Congress to determine what is “necessary and proper” unless the means are obviously unrelated to the proposed end…. The fact that the joint dissenters (erroneously) believe that there are alternatives that would function effectively does not render the course that Congress chose unconstitutional.
And as I noted at the time, the terribleness of these arguments was implicitly conceded by the Republican appointees when they held that the mandate couldn’t be severed… if there were plenty of easy fixes and the mandate wasn’t really necessary to the legislation then why couldn’t the mandate be severed? But this returns us to out first point; national Republicans don’t want any health insurance reform to work…. Republicans will invent all kinds of ad hoc reasons why the government can’t enact guaranteed issue because they don’t actually care if the non-wealthy have access to health care.