Health care challengers offer hypothetical mandates

WASHINGTON -- Can Congress require Americans to buy broccoli? How about gym memberships? Or Chevy Volts?

Those or similar questions are likely to be posed to the Supreme Court later this month as it considers whether requiring Americans to buy health insurance is a law with a "limiting principle."

If President Obama's health care law — his landmark legislative achievement — is to withstand legal challenge, government lawyers must convince a majority of justices that the health care marketplace is unique. By not buying insurance, their argument goes, millions of Americans transfer $43 billion in health care costs to others in the form of higher premiums.

In dozens of briefs challenging just that argument, however, opponents of the law contend that the "minimum coverage requirement" — more commonly known as the individual mandate — would set a precedent that could apply to vitamin supplements, daily newspapers or kidney donations.

If Americans can be told to buy health insurance, Congress could seek to impose "a broccoli mandate, a car-purchase mandate, really any other mandate that you'd want," says Ilya Somin, a law professor at George Mason University who filed a brief for the Washington Legal Foundation, one of the dozens of groups opposing the law. "There are lots of interest groups that would love to lobby Congress to require people to buy their products."

Although the health care challenge is divided into four areas and will be argued over three days, many opponents say the critical test for the government is proving that a health insurance mandate won't lead to others. Never before, they say, has Congress forced Americans to buy something against their will.

The purpose of the mandate is to ensure that new insurance market reforms in the law work as intended. One limits the ability of health insurers to vary premiums based on factors such as gender and health status. Another prohibits insurers from denying coverage to applicants with pre-existing conditions.

Unless younger, healthier people — who often go without insurance until they get sick — are covered, the costs of those changes would be prohibitive, forcing premiums to rise even higher for those already covered.

In response to opponents' warnings that a mandate to buy insurance could lead to other government-required purchases, the Obama administration argued in one of its briefs that no such examples exist.

"Respondents acknowledge that states do have the power to enact purchase mandates, but they identify no example of any state ever having compelled its citizens to buy cars, agricultural products, gym memberships or any other consumer product," it said.

Mandating corn, metro cards

Nevertheless, opponents of the law raise these specters:

•Mandating insurance coverage could lead to requirements affecting basic human needs, such as food and transportation.

A brief submitted by 215 economists argues that food is even more basic to survival than health care and that virtually all Americans use some form of transportation. For that reason, their attorney, Steven Engel, contends, the government could go on to mandate purchases of corn or metro cards.

"Our view is that the health care industry is not so unique," Engel says. "It is not an economic fact that all people require health care."

•The insurance mandate could lead to virtually any type of mandate, no matter how unlikely.