Professor Mark Kende

  • September 6, 2011

    by Jeremy Leaming

    As debate continues to roil over the constitutionality of the landmark health care reform law’s mandate that individuals, starting in 2014, maintain a minimum coverage of health care insurance, Drake University constitutional law expert Mark Kende explains why the most controversial provision of the Affordable Care Act, and the one that is at the center of the litigation challenging the measure, is integral to the law’s intent – to ensure more Americans have health care insurance. 

    Several federal appeals courts have already weighed in on the constitutionality of the individual responsibility provision, and the U.S. Court of Appeals for the Fourth Circuit may issue an opinion soon on the matter.

    In a recent column for the Des Moines Register, Kende, the James Madison Chair in Constitutional Law, and Director of the Drake Constitutional Law Center, touches upon the constitutionality of the provision, but highlights why the provision is crucial to ensuring that more people are covered by health care insurance and that insurers cannot discriminate against people with pre-existing conditions.

    Kende says that if the individual responsibility provision of ACA were invalidated it would be impossible for the act to cover 30 million Americans who are now uninsured or prevent insurers from declining coverage to those with pre-existing conditions.

    Kende writes:

    If John and Jane Doe are free to wait to buy insurance until they are sick, then they will drain the money from the system – creating a tragedy of the commons. For example, due to their lack of planning and preventive action, John and Jane may end up having to be treated in the emergency room which escalates costs dramatically for everyone.

    Insurance only works when there is a balance of payments in and payments out. If we tell insurance companies that they can no longer discriminate against pre-existing conditions, but we allow patients to buy insurance at whim, then we create an incentive for patients to only buy insurance once they need medical care – a surefire strategy for bankrupting the system.

    Kende highlights the June opinion from the U.S. Court of Appeals for the Sixth Circuit, which upheld the individual responsibility provision against a constitutional challenge. One of the judges who found the provision constitutional, Jeffrey Sutton, appointed by President George W. Bush and a Federalist Society favorite, “agreed with the majority position that Congress has the jurisdiction to regulate the insurance market in this manner in order to ensure regulations are effective.”

    Simon Lazarus, public policy counsel to the National Senior Citizens Law Center, and author of two ACS Issue Briefs on the ACA, writes about Judge Sutton’s opinion in this ACSblog guest post.

    For more analysis and coverage of the litigation surrounding the ACA, see the Affordable Care Act Resource Page.