Prior to the Supreme Court’s decision to uphold the Affordable Care Act in NFIB, the overwhelming focus of the political and legal commentary was on whether the individual coverage requirement (“mandate”) was a constitutional exercise of Congress’ commerce power. As a result, the Court surprised almost everyone when it upheld the mandate as a valid exercise of Congress’ power to tax. To do this, the Court effectively rejected the notion that the ACA created a legal mandate to buy insurance, and it focused on the role of the shared responsibility payment. Despite the fact that the ACA labeled this payment a penalty on the failure to obtain insurance, the Court held that the payment would function more like a tax on consumer choice: the ACA gives people a lawful choice between buying insurance and paying the exaction, and the payment amount is not significant enough to undermine this choice. This characterization may have saved the law as a constitutional matter, but it underscores a very serious structural challenge for implementation: the success of health reform depends on broad consumer participation in the new health care markets, and choice has the potential to undermine this success.
There has been relatively little discussion about consumer purchasing behavior or the assumptions underlying predictions about how many consumers will choose to participate in the new markets. And this is precisely why, despite NFIB’s holding, we should not be so quick to dismiss the importance of the mandate/penalty framing that dominated pre-NFIB commentary. Punitive sanctions are not the only tools used by the federal government to influence behavior; government can also leverage its expressive power to define or change social norms in ways that can accomplish the same goal. The ACA may not have created a true legal mandate, but this Article argues that the compulsory framing in the ACA, and in the government’s narrative explaining it, creates a new moral mandate for individuals to obtain insurance. This individual moral mandate is part of a broader expressive message to redefine the social norms relating to health care access and to underscore a moral obligation that is shared by everyone –– government, employers, providers, insurers, and individuals –– to support a system that will improve access to care. NFIB made clear that individuals have a genuine legal choice about whether to participate in this system, but can government leverage its expressive power to define the meaning of this choice in a way that influences people to make the right one?