The fate of the federal health care law currently before the Supreme Court is likely in the hands of Justice Anthony Kennedy, who has already cast the swing vote in a number of contentious cases over the past decade. True to form, his questions during oral arguments gave both proponents and opponents of the federal law reason for hope.
Those who believe that it’s unconstitutional to force individuals to purchase health insurance and that the law should accordingly be struck down point to Kennedy’s statement that “the law changes the relationship of the federal government to the individual in a very fundamental way.”
Supporters of the law point to his comment that young people who forego insurance (“sitting home in his or her living room doing nothing”) may leave others facing higher premiums. In essence, Kennedy was asking: Don’t you need an individual mandate to eliminate “cost-shifting” from those the willfully uninsured to those paying for insurance?
An amicus brief signed by Pioneer Institute and dozens of leading economists (including two Nobel Laureates) directly answers Kennedy’s query, and the answer is: No.
The debate over this point is critical to the federal government’s argument that the law should be upheld under Congress’ power to regulate interstate commerce. The Obama Administration claims the uninsured cost the system $43 billion annually—and that addressing that number is critical to providing coverage to Americans.