Let go of the status quo

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The attorneys general of Florida and 12 other states sued to block the new federal healthcare reform law Tuesday morning almost before the ink was dry on President Obama’s signature. Later in the day, Virginia’s attorney general filed a second lawsuit, also challenging the constitutionality of the new law. Echoing an argument often cited by opponents of comprehensive reform, both complaints contend that Congress overstepped its authority by requiring Americans to carry health insurance. We urge the courts to reject the states’ claims without delay.

The underlying policy question is whether we’re better off as a society with healthcare haves and have-nots, or with the risks of illness and injury shared broadly across the population. A majority of lawmakers chose the latter course, voting to extend coverage to as many of the uninsured as possible. It’s a long-overdue reform that recognizes how much all Americans benefit from a healthier populace.

The legal question, though, is whether the mechanism Congress used in pursuit of universal coverage is constitutional. By requiring all American adults to obtain insurance, the lawsuits argue, Congress exceeded its power to regulate interstate commerce. Although the complaints make different claims, the unifying theme is that the law is an attack on an individual’s liberty to look out for himself, and himself only.


The courts, however, have given Congress broad latitude to enact rules if they are “an essential part of a larger regulation of economic activity,” and the insurance mandate fits that rubric. To promote universal coverage, the new law bars insurers from denying policies to people because of preexisting conditions. Healthy adults might game the system by waiting to obtain coverage until they need expensive care; the mandate to buy insurance is essential to stopping that kind of abuse. It also helps reduce the costs imposed by uninsured patients who can’t afford their healthcare bills.

The mandate also could be viewed as a constitutional exercise of Congress’ power to levy fees in support of the public’s “general welfare.” It’s written into the tax code and enforced with limited tax penalties, not jail terms or property liens. In essence, the insurance obligation is a shared burden, like Social Security or Medicare, but with more services delivered by the private sector.

The lawsuits may be technically premature, because the mandate won’t take effect until 2014. But the courts should consider them now, if only to answer critics whose inflammatory rhetoric has convinced many Americans that fundamental liberties are under assault. The new law attempts to improve the healthcare system for everyone, not just the uninsured. We should be focused on making it work, not preserving the status quo.