Washington Obama's insurance requirement not the only mandate

By Ricardo Alonso-Zaldivar

Associated Press

WASHINGTON (AP) -- The individual insurance requirement that the Supreme Court is reviewing isn't the first federal mandate involving health care.

There's a Medicare payroll tax on workers and employers, for example, and a requirement that hospitals provide free emergency services to indigents. Health care is full of government dictates, some arguably more intrusive than President Barack Obama's overhaul law.

It's a wrinkle that has caught the attention of the justices.

Most of the mandates apply to providers such as hospitals and insurers. For example, a 1990s law requires health plans to cover at least a 48-hour hospital stay for new mothers and their babies. Such requirements protect some consumers while indirectly raising costs for others.

One mandate affects just about everybody: Workers must pay a tax to finance Medicare, which collects about $200 billion a year.

It's right on your W-2 form, line 6, "Medicare tax withheld." Workers must pay it even if they don't have health insurance. Employees of a company get to split the tax with their employer. The self-employed owe the full amount, 2.9 percent of earnings.

There's no question the Medicare payroll tax is a government mandate, said Mark Hayes, former chief health counsel for the Republican staff of the Senate Finance Committee.

But he makes a distinction between the payroll tax and the individual health insurance mandate in Obama's health care law.

Congress used more clearly defined constitutional powers when it created Medicare. "The power to tax and the power to spend," Hayes said. "Here, with the individual mandate, it's a different question -- regulating interstate commerce. This is a novel question from a legal standpoint."

Obama's law makes health insurance both a right and a responsibility for most. It would provide coverage to more than 90 percent of the population, subsidizing private insurance for millions. But it also requires nearly everyone to carry health insurance, either through an employer or a government program, or by buying an individual policy.

The mandate is well within the power of Congress to regulate interstate commerce, the administration and the law's supporters contend. Opponents say Congress overstepped constitutional bounds by effectively requiring individuals to purchase a particular product.

Supreme Court justices are trying to determine the distinction between Obama's law and other mandates, and whether it makes a difference.

Justices Ruth Bader Ginsburg and Anthony Kennedy raised the matter during oral arguments last week.

Ginsburg brought up Social Security as an example, likening it to a government old-age annuity that everyone is forced to purchase.

Kennedy mused that Congress could have created a Medicare-style program for the uninsured, run exclusively by the government without the involvement of private insurers.

Social Security and Medicare are no longer controversial mandates because they are part of the social fabric, said Hayes, the former GOP congressional aide. Not so the health care law's mandate.

The distinction frustrates supporters of the health care law.

"It's so crazy to think that a society that has Social Security and Medicare would not find this (law) constitutional," said MIT economist Jonathan Gruber, who advised both the Obama administration and Massachusetts lawmakers as they developed the state mandate in the 2006 law that Republican presidential candidate Mitt Romney championed as governor.

"The payroll tax is worse than the mandate, because that is a program where we take your money and there is no ability to get out of it," Gruber said. Citizens can avoid the health insurance mandate by paying a penalty to the Internal Revenue Service.

Published: Tue, Apr 3, 2012

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