post by Paul Kelleher
As a follow-up to my post yesterday, I want to note that I'm fairly hesitant to say that this or that argument/consideration can or cannot "support" the mandate. I think Austin Frakt gets it right that several reasons can and do work jointly to justify it. If pressed, however, I'd say that the the central consideration that justifies the mandate is simply that it's necessarily if we want to achieve universal coverage without banishing private insurance companies. I've discussed this before, but if you want a refresher on the logic, Uwe Reinhardt explains it masterfully in just 881 words.
I think the lesson from the Supreme Court oral arguments is that legal folks want a much more direct and individualist route to the mandate, one that explains why features of this person's situation justify this particular duty to purchase this much insurance. That line of questioning distracts from bigger picture that many fans of the ACA (like me) think about when we say the mandate is one of three legs of the universal coverage stool. It also distracts from the fact that, ultimately, absolutely no one is forced by the mandate to have health insurance. Rather, the mandate is a "pay or play" provision: people can just pay the penalty instead of getting insurance. If cost-shifting really were the only consideration on the table, then a penalty in the form of a "non-refundable emergency room deposit" (or whatever) may be the best policy.
I think we are where we are in part because cost-shifting isn't the only consideration on the table, yet many ACA defenders don't want to admit that the ACA is at bottom about social justice and the general welfare, and that the mandate is part of a scheme that asks everyone to pitch in to ensure that everyone gets decent coverage. Instead, the mandate is portrayed as a plank that ensures personal responsibility, and it is this sort of claim that opens the door to the questions Alito was raising about whether the mandate solution is commensurate with the cost-shifting problem.
(Thanks to Austin Frakt for further discussion of these issues via email.)