The Individual Mandate is Safe in Massachusetts

Yes, the Supreme Court pummeled the individual mandate last week, and no, that’s not going to mean anything for Massachusetts’s version of the same provision. Briefly, the individual mandate is a part of the national health care law (so-called Obamacare) that requires everyone to purchase health insurance or face a penalty. And despite the justices’ seeming take down of the requirement, their decision is unlikely to affect us. Here are the two major reasons why:

1. The sticky wicket in the federal version of our law is the Commerce Clause, which gives Congress the power “To regulate commerce with foreign Nations, and among several states, and with the Indian Tribes.” The justices have not questioned the constitutional authority of this (it’s pretty high up in the Constitution) but have questioned whether it’s OK for the government to compel such commerce in order to regulate it. Why it won’t matter for Mass.: Our law (so-called Romneycare) doesn’t seek to regulate any interstate commerce — though as the Globe pointed out, uninsured people from New Hampshire continue to use our hospitals in emergencies.

2. OK, so if Granite Staters are using our services, surely there’s an implicit instance of interstate commerce going on, which should fall under federal authority. That’s a pretty good point in my view and probably one for the constitutional scholars and attorneys. But, at least until November, it’s not going to make a lick of difference. Why it won’t matter for Mass.: This is where it becomes important that Obamacare is the progeny of Romneycare. If When Romney faces Obama in the general election, it would seem disadvantageous to the Republican to have his own healthcare bill (Note: mostly his. The State Legislature overrode a few of his line-item vetoes) under scrutiny for the exact same government overreach that everyone blames Obama for. Don’t expect any conservative leaning, politically aware attorneys to miss that. Not in an election year.

In the end, that’s what it is: Politics. The healthcare debate has never been about making people healthy, it’s been about freedom. Clearly, we all define that differently.