HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, June 28, 2012

Big Victory for Purchase Mandates

It's difficult to exaggerate the extent to which the argument against purchase mandates came up short in today's decision. Not only did the Supreme Court uphold the individual mandate to purchase health care, but the majority's opinion casts no doubt on just about any other mandate that Congress might want to pass.

As I have observed before, Congress usually can impose purchase mandates by tying the mandates to voluntary economic activity. If Congress wants us to buy broccoli, for example, it can require grocers and restauranteurs to include broccoli with every sale (say with an exception if you show you bought broccoli earlier that day or week). What's different about the health care mandate is the infeasibility of tying it to another voluntary purchase, like the purchase of health care services. Health care coverage must be purchased before the need for health care arises.

The majority may have rejected the imposition of mandates on those who are not engaged in economic activity, but it did not reject the regulation of people already engaged in economic activity. Just as Congress can require us to buy seat belts with our cars or V-chips with our television sets, it can require us to buy other things when we enter the marketplace. The barrier to purchase mandates remains political, not constitutional.

[DO] [cross-posted at Concurring Opinons]

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