Monday, February 27, 2012
Jenny Wriggins (Maine) has posted to SSRN a paper sure to receive attention, Is the Health Insurance Individual Mandate 'Unprecedented?': The Case of Auto Insurance Mandates. The abstract provides:
Opponents of the Patient Protection and Affordable Care Act of 2010 assert that the ‘individual mandate’ is unprecedented, not just in the narrow and obvious sense that the federal government has never before required people to have health insurance, but in a much broader sense as well. They claim government even at the state level has never before required people to insure themselves. This article examines the assertion that the mandate is an unprecedented outlier and a sharp departure from all past government policies. This article finds that the laws in many states require drivers to purchase insurance coverage for their own injuries, that several states’ laws require drivers to buy coverage for their own medical expenses, and that liability insurance mandates protect careless drivers along with their victims. These long-standing individual insurance mandates have been overlooked by both sides in the current debate. As requirements for people to insure themselves, they are clear, powerful precedents for the health insurance individual mandate. If forced to admit that these laws exist, opponents may then claim that driving is a pure choice: If people object to state auto insurance laws, they can simply opt out and choose not to drive, while there is no opt-out from the individual health insurance mandate. The article argues that ‘driving as a pure choice’ is largely illusory and not a sufficient basis on which to argue that these precedents are irrelevant.
Finally, the article turns to the forgotten history of auto insurance mandates, drawing lessons from that history for today’s debate. The history shows first that, leaving aside the Commerce Clause arguments which by definition only apply to the federal government, the arguments used to resist auto insurance mandates were strikingly similar to arguments used to oppose the health insurance individual mandate. Second, courts have consistently recognized a link between insurance and the public welfare justifying regulation in the auto context. Third, governments have recognized for decades that the auto insurance market must be regulated to provide a socially optimal level of coverage, as seen in the U.S. Supreme Court’s 1951 decision upholding a California market regulation law. Finally, state governments have long required people to purchase insurance for themselves from private sellers. The health insurance individual mandate is not different in kind from auto insurance individual mandates but rather extends the idea of insurance mandates to an even more important context.