I wanted to make another quick point, much like my post on Friday, that is probably so banal as to be embarrassing. But the matter gets confused enough in discussions (and briefs and even judicial opinions) that it probably bears some clarification.
One argument that some challengers to the minimum coverage provision's constitutionality have repeatedly raised is that the government cannot make a statutory provision "necessary and proper" simply by creating a regulatory scheme that includes the provision, with the constitutionally problematic provision being integral to the scheme (and thus, by argument, constitutional as "necessary and proper" to a broader regulatory scheme.) This would be impermissible "bootstrapping." In other words, the government cannot render an otherwise unconstitutional provision constitutional by enacting other provisions that will not function without the constitutionally problematic provision.
This seems correct, as far as it goes. But I do not think it accurately characterizes what is going on here.
Properly conceived, the relevant question is not (or not simply) whether the minimum coverage provision is "necessary and proper" given the enactment of the guarantee-issue and community-rating provisions in the ACA. And the relevant problem here is not the operation of the regulatory scheme absent the minimum coverage provision. Rather, the relevant problem is the manner in which the current, pre-ACA (or pre-2014) individual insurance market functions (or fails to function)--a market operates to discriminate against those with pre-existing conditions and leaves insurance unaffordable for a huge swath of Americans. That is not a problem of the ACA's creation, but well predates the statute.
Congress thus responded with a particular regulatory approach--the now-famous (or infamous) "three-legged stool," of which the insurance mandate is one of the legs. From the government's perspective, the mandate is necessary not simply because the stool will fall down without it. Rather, it is necessary (that is, "conducive" or "appropriate") to ameliorating pathologies in the non-group insurance market, pathologies that existed long before the ACA.
Again, we can debate whether it is really "necessary," and whether such a reading of necessity leaves anything beyond Congress's reach. But to characterize the government's argument as impermissible "bootstrapping" fundamentally misses the way in which the Act attempts to respond to a problem that is not a problem of the statute's own creation.
