Small Business Group: The Individual Mandate Is Unconstitutional


Today is the one year anniversary of the passage of the giant health care reform bill. The future of the Patient Protection and Affordable Care Act is still uncertain. More than half of the nation's states are suing the federal government over this law.

Some federal courts have ruled that portions of the law are unconstitutional. Others have upheld the law. It seems certain to come before the Supreme Court.

One segment of the population that has been extremely vocal in its opposition to the law is the small business community. I asked Karen Harned, executive director of the NFIB Small Business Legal Center, to discuss the one year anniversary of health care reform and their efforts to expedite the case to the Supreme Court. The National Federation of Independent Business is a part of this lawsuit to overturn this controversial law.

LL: It is estimated the Supreme Court will hear health care reform case in June of 2012. You are trying to expedite it. Will you be able to? How soon realistically could it be moved up?

KH: NFIB is committed to moving this case through the courts and up to the Supreme Court as fast as possible. However, with just three months left in the current Supreme Court term, we are focused on positioning our case to be in the Supreme Court term that starts in October and concludes June 2012.

LL: Would you consider this commerce at the point of a gun?

KH: NFIB believes that the individual mandate in the health care law is unconstitutional. For the first time in our nation’s history Congress is compelling individuals to engage in commerce by forcing them to buy a product from a third party (i.e., insurance from a private insurer).

LL: What kind of impact are your members seeing as a result of the reform?

KH: More than anything our members are seeing fewer choices in the health insurance market and watching already high health care costs skyrocket. Specifically, their plans are being canceled, they can’t keep the type of insurance they have, their premiums are increasing by as much as 40 to 60 percent, and there are new restrictive rules for the purchase of over-the-counter drug products.

In addition, there is a great deal of uncertainty and fear regarding the impending taxes and compliance costs that the law will bring, and serious questions regarding whether the exchanges will bring needed competition and increased choice in the individual and small group market. Finally, the benefits of the temporary and narrow tax credit are overstated and misleading.

LL: There is a danger of small businesses to be caught in the middle- thinking this reform has been overturned—which legally it has not.

What advice do you give them as this reform challenge moves through the courts?

KH: NFIB continues to advise its members to comply with the law as written until the court fight is over. We are confident that we have the Constitution on our side and remain hopeful that we will ultimately prevail.

A Senior Talent Producer at CNBC, and author of "Thriving in the New Economy:Lessons from Today's Top Business Minds."


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