A mandate for high-court action

The individual mandate — that controversial provision of the new health care law that requires nearly every individual to have health insurance or pay a fine — suffered two significant setbacks this week.

The mandate is far from dead, however. But the confusion over its status makes it imperative that the U.S. Supreme Court resolve the issue, sooner rather than later.

The individual mandate is a core provision of health care reform. Unless everyone has insurance, we’ll continue to face problems similar to the current situation, in which those with health insurance subsidize those without, as people in the latter group go to emergency rooms that are required by law in most states to treat all comers. Moreover, requiring insurance companies to accept all applicants, regardless of pre-existing conditions, doesn’t work unless they can spread the risk among more people, including the many healthy young folks who now decline to buy insurance.

Even so, there is a reasoned argument to be made about the constitutionality of the individual mandate. That’s why a number of attorneys general, including Colorado’s John Suthers, have joined in a lawsuit challenging whether it’s constitutional. Other states have taken on the issue individually, and on Monday, a federal judge issued a preliminary ruling on Virginia’s challenge to the individual mandate.

Judge Henry Hudson rejected a request from the Obama administration to simply dismiss the Virginia case. In doing so, Hudson hinted at his views on the issue.

The administration and others argue the mandate is valid under the Commerce Clause of the U.S. Constitution. But Hudson said that claim, “literally forges new ground and extends Commerce Clause power beyond its current high watermark.”

That statement represents the view of a single federal judge. A much broader referendum on the individual mandate occurred in Missouri Tuesday, where 71 percent of voters who cast ballots supported a measure that would supposedly nullify the individual mandate in Missouri when Obamacare takes effect.

Colorado could see its own version of the Missouri measure this November. On Friday, the Golden-based Independence Institute turned in more than 130,000 signatures for a constitutional amendment that would block national health care reform in Colorado.

However, because states don’t have the authority to overrule acts of Congress, the Missouri vote is seen as largely symbolic. Even so, they indicate continuing public anger at the health care reform bill passed by Congress this year. A variety of recent polls suggest solid majorities of Americans now oppose the health care bill.

It’s not hard to understand why. The 2,000-plus pages of the health care bill contain much that is problematic. The anticipated cost — although disputed — is a legitimate cause for concern. For instance, the federal government’s Medicare actuary estimated the bill would have a total cost to the federal budget of $251 billion over the next nine years.

There are also some innovative provisions in the bill that may well bring costs down — a multitude of pilot programs that test new ways of delivering services and containing costs.

But the individual mandate remains at the heart of the health care bill. With public opinion and at least one legal ruling against the mandate, it behooves the Supreme Court to take up the issue quickly so the country can determine how to move forward on health care reform.


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