minimum coverage provision

by Jeremy Leaming

Someday soon, perhaps not soon enough, the fear mongering over the landmark health care reform law, the Affordable Care Act, will be relegated to the dustbins of history.

The scare tactics we’ve lived with for what feels like a decade – the ACA’s minimum coverage provision, requiring Americans who can afford to do so to start paying for a minimum amount of health care coverage in 2014 is an unprecedented expansion of congressional power and a dire threat to liberty as we know it – are getting even louder as oral argument in the case approaches.

The usual suspects, Fox News and rightwing radio host Rush Limbaugh have been the ringleaders of sloppy reasoning and fear mongering, as Media Matters’ David Lyle notes in cogent fashion.

Lyle’s piece documents the shrill arguments – you’ve heard them – if Congress can force us to purchase a minimum amount of health care coverage, then surely it'll pass laws soon to force us to purchase gym memberships, organic foods, and American automobiles.

But Lyle notes this “slippery slope argument turns out, however, to be too slippery by half, and it gets both the Constitution and the facts of the health care marketplace wrong.”

On a Feb. broadcast, Limbaugh suggested once people are required to purchase a minimum amount of health care coverage, then what can stop the government from “making us buy a stupid electric car.” Lyle cites a slew of other examples peddling the slippery slope scare tactic.

But Lyle notes, what others have before “legal and health policy experts have explained, contrary to the right-wing’s ‘broccoli mandate’ talking point, the Affordable Care Act appropriately addresses failures in the health insurance market using the broad powers the Constitution gives Congress to regulate the national economy, and does not lead to the absurd results opponents have imagined.”

by Jeremy Leaming

Opponents of the Affordable Care Act’s provision that requires people who can afford it to obtain minimum health insurance coverage or pay a penalty with their annual income tax return have loudly argued that it upsets the balance between the regulatory powers of the federal government and state governments.

But in a recent piece for The Times-Picayune, a New Orleans daily, distinguished law professor at the University of Southern California Rebecca L. Brown says the federalism argument is “false.”

First she notes there is “no serious argument that health care and insurance purchasing are not economic, or that they affect purely local interests – the arguments in all prior Commerce Clause challenges.” (Indeed the Constitution’s commerce clause provides Congress the authority to regulate conduct that substantially affects interstate commerce. The health care market accounts for more than 17 percent of the U.S. economy, and everyone, at some point, participates in it or is constantly at risk of incurring substantial medical expenses.)

Opponents of the law are aware of the parameters of the commerce clause and federal court precedent surrounding it, and are actually pushing an individual-rights argument. “The Affordable Care Act challenge,” Brown writes, “powerfully evokes that libertarian tradition by arguing that the requirement to purchase health insurance invades personal decision-making.”

But that argument, Brown continues, is as wobbly as the federalism argument.