Obama Lawyer Undercuts His Own Argument

No, the individual mandate is not about eliminating cost shifting.

Both in the political arena and in court, the Obama administration has defended its mandate forcing individuals to purchase health insurance by arguing that when uninsured people show up at emergency rooms, they impose a cost on society. As described in the legislation, the mandate is merely an "individual responsibility requirement."

In reality, the mandate has always been about forcing healthy people into the insurance pool, to offset the distortion in the market created by the related provision requiring insurers to cover those with pre-existing conditions.

Tuesday's oral arguments on the constitutionality of the mandate illuminated this better than ever before.

Mike Carvin, who represented the National Federation of Independent Business before the court, explained that the uninsured and those who show up at hospitals without paying are different populations.

"It is clear that the failure to buy health insurance doesn't affect anyone," Carvin said. "Defaulting on your payments to your health care provider does. Congress chose, for whatever reason, not to regulate the harmful activity of defaulting on your health care provider."

This could be a key consideration for Justice Anthony Kennedy, who is widely seen as the swing vote in this case, in which NFIB and 26 states led by Florida have challenged the mandate. During oral arguments, Kennedy seemed to accept the argument brought by opponents of the national health care law that the mandate was unprecedented, saying that it "changes the relationship of the federal government to the individual in a very fundamental way." His comments also suggested he was concerned with whether there could be limits on federal power if the mandate were upheld.