Tuesday, December 14, 2010

Holder and Sebelius op-ed

Attorney General Eric Holder and Secretary of Health and Human Services Kathleen Sebelius have published an op-ed in today's Washington Post in response to yesterday's decision. You can access the op-ed here.

It is generally what you would expect: a policy-based argument as to why the individual mandate is critical to the ACA's broader regulation of the health insurance market, with an anecdote thrown in for good measure. What is a bit interesting, though, is the following passage:

"If we want to prevent insurers from denying coverage to people with preexisting conditions, it's essential that everyone have coverage. Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market. The same is true for health insurance. Without an individual responsibility provision, controlling costs and ending discrimination against people with preexisting conditions doesn't work."

As discussed yesterday, perhaps the biggest single legal challenge for the administration will be to convince judges that the health insurance market is unlike any other market, and that Congress's use of the commerce power to enact 1501(b) will not justify the compulsion of Americans to purchase any other good or service. Perhaps unwittingly, though, the Attorney General and Secretary Sebelius here seem to be arguing, through this analogy, that the the logic of the government's commerce power arguments would indeed extend to other products--or at least to other insurance products. 

It's a minor point, but it highlights some of the tensions between the administration's political and legal positions.