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ACA Individual Mandate Provision: Day 2 of Deliberations

ACA Individual Mandate Provision: Day 2 of Deliberations

Picture of Michael  Douglas, MD, MBA

Going into the second day of oral arguments before the Supreme Court regarding the constitutionality of the reform law, a new round of polling suggests that antipathy toward that buzzphrase - "individual mandate" - comes from a slim majority of the public. Fifty-one percent want it stricken. Less than a third surveyed think it should stand as a provision. The Kaiser data reflects changing mood on the topic, where previously, fewer Americans thought that the requirement for insurance coverage was any sort of private infringement on individual liberties. The politics surrounding this week's arguments are no doubt adding fuel to this fire.

To review, today, the SCOTUS will have the opportunity to reverse the decisions of lower appellate courts which struck down a mandate requirement in one state, upheld it in another, or thought it an inappropriate time to challenge it ahead of 2014. Congress's ability to rely on the commerce clause to legislate such an action is what will be at the center of today's deliberations. Those on the plaintiffs' side of things will be specifically contesting lawmakers' ability to regulate insterstate commerce of services. The federal government will argue that taxation, as opposed to a penalty, for failure to purchase coverage is necessary and proper to carry out insurance reforms as part of the reform law. This is necessary, the government contends, because the burden of increased healthcare costs rests upon the sheer numbers of uninsured whose care would require taxpayers to shoulder that burden if the mandate provision were not included within the ACA. This prevents cost-shifiting to the taxpayer, when, under reform, the uninsured have the power via subsidy to apply the use of exchanges in the healthcare market place - to obtain healthcare.

Dectractors warn that the government cannot rely on the necessary and proper clause because that clause gives Congress the authority only to use "means by which other objects are accomplished". The power to force individuals to purchase insurance would be to create interstate commerce so that Congress would regulate it. To see the big picture, check out the infographic here.

Read more from Michael Douglas on the ACA deliberation.

(This post originally appeared at


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