Jennifer B. Wriggins

Abstract

Now that the Affordable Care Act (ACA) individual health insurance mandate has been upheld by the United States Supreme Court, it is an opportune time to examine precedents for the individual mandate that were not considered in the legislative debate or litigation about the ACA’s constitutionality, particularly auto insurance mandates. Although opponents’ arguments were cast largely as Commerce Clause claims, the arguments have a deeper foundation in concerns about liberty and coercion that go far beyond the Commerce Clause. Although auto insurance mandates are different—especially because they are state rather than federal requirements—they help illuminate what Congress was doing, and why, when it enacted the ACA reforms and the individual mandate. Auto insurance mandates are relevant because they are a ubiquitous example of risk-spreading through a combination of private markets and public regulation, the same broad approach taken by the ACA mandate. This article shows that auto insurance mandates are an important precedent for the ACA individual mandate and share four significant parallels with it: both arose in challenging situations where compelling reasons existed for mandates; both require people to insure themselves against risks they might otherwise choose to bear; both require risks to be transferred and spread, an essential feature of insurance; and both require people to buy something from a private seller. These mandates represent similar policy responses to public dilemmas involving physical harm or illness and how to finance needed redress or treatment. The article then addresses the argument that auto insurance mandates are fundamentally different because driving is a choice, whereas the ACA mandate regulates mere existence. This argument is specious for at least three reasons: driving is not always a choice; the Supreme Court’s decision shows that the ACA mandate does create a choice; and auto insurance mandates are, in fact, more coercive than the ACA individual mandate. Finally, the article highlights the history of auto insurance mandates, noting that opponents fought such mandates for six decades using rhetoric about freedom and American values—much like ACA opponents do today. Constitutional doubts were repeatedly resolved in favor of mandates, particularly given the public welfare aspects of insurance. Over time, “freedom” arguments faded, and auto insurance mandates have become a workable, widely accepted, distinctly American method of dealing with risk.

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