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Deutch: Mandate Is a ‘Necessary and Proper’ Response to Insurance Crisis

At our core, Democrats are problem-solvers. We have our ideological preferences, but we are willing to consider ideas from the other side and compromise in the name of progress.

When a carbon tax was flatly rejected by our Republican friends, we embraced their innovative cap-and-trade proposal — only to have them later vilify it. When consensus evaded comprehensive immigration reform, we endorsed smaller steps, such as the Republican-sponsored but now-spurned DREAM Act.

Yet there is no better example of the GOP’s evolution from the “party of ideas” to the “party of abandoned ideas” than its enormous, Olympic-quality flip-flop on the individual mandate. That Republicans now speak of what was once a centerpiece of their private-sector-based health care reform framework as an abomination of our Constitution reveals their sole objective is political gain rather than solving our health care crisis.

Regardless of their motivation, challenges to the Patient Protection and Affordable Care Act’s individual mandate provision risk undoing landmark reforms for systemic problems that have plagued our nation for decades. Though some Democrats advocated a single-payer system to cover all Americans and others endorsed a public insurance option that could at least compete in the private market, our end goal has always been guaranteeing access to affordable health care. The individual mandate corrects our dysfunctional private insurance market by ensuring well-distributed risk pools with healthy customers who offset the costs that insurers incur caring for the sick.

The Constitution provides Congress with several sources of authority to regulate insurance nationwide using an individual mandate. Opponents charge that the mandate surpasses Congressional authority under the Commerce Clause because regulating inactivity, such as the decision to forgo health insurance, would be unprecedented. Yet just because “inactivity” has never before had such a profound effect on interstate commerce does not shield it from federal regulation. The Supreme Court has upheld new and unprecedented exercises of this Congressional power throughout history, from the creation of a central bank to the regulation of food grown for personal use.

Fifty million Americans are not uninsured because affordable medical care somehow threatens their personal liberty. These families lack coverage because their employers do not offer it, they cannot afford it or pre-existing conditions make them unprofitable customers for private insurance companies. If there are conscientious objectors to buying health insurance, liberty only goes as far as encroaching on the rights of others.

Freeloading on the health care system is not really free. If hospitals turned away uninsured car crash victims, then perhaps forgoing insurance would not affect commerce. Thankfully, hospitals ask no questions on the way to the operating room. More than half of all bankruptcies in America are related to medical bills, and ultimately, taxpayers or insured Americans pick up the tab. Hospitals have to make up for the billions that they spend on uncompensated care somehow, so they increase costs on patients with private plans or Medicare coverage. Cost-shifting exacerbates the rising premiums that make insurance unaffordable in the first place. This vicious cycle of uncompensated care driving up health care costs transcends state lines.

Congress has constitutional powers beyond the Commerce Clause. As much as Republicans would like to forget it, Congress has the power to tax and provide for the general welfare of the American people. Article 1 also includes the Necessary and Proper Clause, granting Congress broad authority to fulfill its other duties. As a tax that offsets the cost of caring for freeloaders, the individual mandate is a critically necessary means to an end. In fact, in Maine, Kentucky and other states with laws that lack an individual mandate but nonetheless require coverage of patients with pre-existing conditions, consumers have faced skyrocketing premiums and seen insurance companies flee their states.

Affordable coverage for 30 million Americans is on the line. We know that uncompensated care drives insurance premiums up nationwide. We know that the individual mandate once championed by Republicans is a necessary and proper solution to a dysfunctional insurance market. What we do not know is whether the Supreme Court will reject this blatant political revisionism by the previous champions of the individual mandate.

It is my hope that the Supreme Court will instead uphold this landmark reform so that we may finally begin to overcome the shortcomings of our nation’s health care system and guarantee affordable and accessible care for all Americans.

Rep. Ted Deutch (D-Fla.) is a member of the Judiciary Committee.

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