An NFIB Counterfactual: What if the Obamacare Individual Mandate Were Enforced By Employers?

On Friday, I offered five tentative thoughts about the OSHA vaccine mandate. My final point considered whether this statute, as enforced through the OSHA executive action, would be a “proper” exercise of federal power. Consider a counterfactual to illustrate this constitutional question. Flash back to 2009. Imagine that Congress chooses a different path for the ACA. Instead of enacting the familiar individual and employer mandates, Congress imposes a very different kind of mandate: all employers with more than 100 employees must require that their employees purchase health insurance that meets certain minimum standards. The federal government offers generous income-adjusted subsidies. There are also hardship exemptions for people whose income falls below a certain level. But if a person does not fall within an exemption, and still chooses not to buy health insurance, then the employer is subject to a $15,000 fine per quarter. The federal government imposes no penalty on the employee. Under the law, employers are required to maintain records of uninsured employees, and must also track booster shots. Federal inspectors will perform routine inspections of those records and the premises, and can issue quarterly fines for each unvaccinated employees. During congressional hearings, leading executives and HR professionals predict that businesses would simply terminate employees rather than pay the repeated fines. Millions of Americans would lose their jobs due to the mandate. I view this hypothetical as a workaround of NFIB ‘s proper analysis. So long as the mandate is enforced by employers, the federal government is not […]

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