Some of the legal questions related to the individual mandate are, at least partially, policy questions. In particular, what does the individual mandate do? And can the law stand without it?

The argument conservatives are making right now is that the individual mandate regulates "economic inactivity." That's not a description anyone had heard of it back when conservatives were co-sponsoring bills with the individual mandate, and it's not what the policy's creator had in mind when he developed it. But that doesn't make it untrue.

To believe it, however, you need to adopt a very narrow definition of what's being affected here: Namely, the decision to purchase or not purchase health-care insurance. The more traditional view is that the individual mandate is one of a slew of rules and regulations bringing order to something much broader: The American health-care system, which all of us participate in. That's the view of the 38 health economists and academics who signed this brief (pdf). "There is no such thing as 'inactivity' or non-participation in the health care market," they wrote. "As the District Court" -- which ruled for the Affordable Care Act -- "recognized, virtually all Americans will, at some time during their life, require health care, either because of illness, accident, or the wear and tear of age."

Because health services are so expensive, the costs are defrayed over many years. That's what insurance does. And because we are a humane society, we have rules and regulations in place to ensure that people can get treated even if they don't have insurance. In that way, you may not be interested in the health-care system, but if you get hit by a bus, the health-care system is interested in you -- and that's true even though you weren't making an economic choice to become "active" in the health-care system when you stepped into the street. You were, by virtue of our laws and regulations and taxes, already an active participant. The authors of the brief make this point -- and its connection to the individual mandate -- well:

The requirement to obtain a minimal level of health insurance is predicated on the unique characteristics of the health care market -- the unavoidable need for medical care; the unpredictability of such need; the high cost of care; the inability of providers to refuse to provide care in emergency situations; and the very significant cost-shifting that underlies the way medical care is paid for in this country. Those characteristics do not obtain in other markets and, without them, the predicate for the kind of regulation adopted in Section 1501 does not exist. Hence, affirming Congress’ power to adopt Section 1501 will not open the door to unfettered expansion of federal power over individual liberty, as Appellants fear.

To make this more concrete, when an uninsured person breaks a leg and needs hospital care, that care is paid for by the rest of us. It'd be a bit odd for your economic inactivity to cost me money. But your decision to remain without insurance does cost me money, because you're an active consumer of health-care risk and an active participant on a health-care market that affords you certain benefits. When you don't purchase insurance, you've not decided against participating in the American health-care system. You're just not participating responsibly. To quote Mitt Romney:

Some of my libertarian friends balk at what looks like an individual mandate. But remember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on the government is not libertarian.

Then there's the question of severability -- can the law work without the mandate? The legislation does not specifically say that it can. And the Obama administration, in a calculated gamble to persuade the Court that the mandate passes constitutional muster through the "necessary and proper" clause, is currently arguing that it can't. This, at least in part, led Judge Vinson to void the entire bill. "In the final analysis, this Act has been analogized to a finely crafted watch,and that seems to fit," he wrote. "It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed."

The irony of all this is that one of the central arguments in the Democratic campaign for the presidency was between the Obama campaign, which didn't think health-care reform required an individual mandate, and the Clinton campaign, which thought it did. I was on Clinton's side in that debate, but the case is more nuanced than the Obama team allowed then or is admitting now. The legislation will work much better with an individual mandate. But many people will be covered, and many goals achieved, in the absence of the mandate.

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