Can Congress Force Us
To Buy Health Insurance?
Gary Gerard,
dumbhoosier.com
It will be interesting to see how the U.S. Supreme Court will rule with
regard to the individual mandate to buy health insurance as part of
Obamacare.
So far, lower courts have ruled twice in favor and twice against the
mandate.
The mandate forces individuals to buy health insurance. If you don’t
buy it, you will be fined.
See, the government needs the money. The idea is that for Obamacare to
work, healthy young people need to buy into the program. Right now,
lots of healthy young people don’t bother getting health insurance.
Money from those people is needed to offset the costs of treating older
sick people.
First, let’s examine a little political tidbit regarding this issue.
Question – Who said the following?
“If a mandate was the solution, we can try that to solve homelessness
by mandating everybody to buy a house.”
Answer – That was then-senator Barack Obama during the 2008
presidential primary campaign when he strongly opposed the individual
mandate as part of any health care plan.
Back then, Obama campaigned on that one key difference between his plan
and his opponent Hillary Clinton’s plan. Obama wasn’t going to force
anybody to buy insurance.
But Congressional Democrats eventually included the mandate in the bill
that passed and was signed into law in March. Since then, Obama and his
administration have staunchly defended the mandate, noting that it is
the cornerstone necessary to the whole of Obamacare.
(That’s not really relevant to the argument. I just thought it was
interesting.)
The bottom line in all this is whether the U.S. Constitution precludes
Congress’ authority to compel people to buy health insurance.
Seems to me it does, but plenty of people believe it doesn’t.
Certainly, the federal government has and continues to compel us to do
lots of things that maybe some of us would rather not do. Things
like paying taxes, performing jury duty, entering a military draft, all
manner of permits and licenses, airport screenings, vaccinations.
I could go on, but you see what I mean.
So why are some judges ruling the government can’t force us to buy
insurance?
Well, it seems the argument hinges on the idea that this is the first
time that the government has attempted to regulate inactivity under the
Commerce Clause.
The – much maligned and misinterpreted, in my view – Commerce Clause,
is found in the U.S. Constitution in Article I, Section 8. It’s
the third clause. It says the U.S. Congress shall have power “to
regulate commerce with foreign Nations, and among the several States
and with the Indian Tribes.”
Pretty straight forward, actually. I believe the founders simply wanted
the government to be an arbiter in trade disputes between states and
foreign nations. There’s plenty of evidence of that, but that’s a
different column.
Over the years, however, the Commerce Clause has been interpreted like
this:
Company A makes a product. Company A sells the product. That’s commerce
so Congress can regulate company A. I really don’t think that’s what
the founders had in mind, but that’s what’s evolved over the years.
More recently, the Supreme Court’s view has been that states are much
more economically dependent on each other today than they were in the
days of the founders. That makes it necessary for Congress to regulate
everything that affects commerce – which, essentially, is everything.
Under this interpretation, Congress leans on the Commerce Clause to
regulate everything from firearms possession, wages, agriculture, land
use and mining, manufacturing, ergonomics, work safety, you know, just
everything.
So far, under the Commerce Clause, the government has only regulated
activities. That is, you’re selling guns, so the government regulates.
You’re mining coal, so the government regulates. You don’t follow the
rules, you can be fined.
But the individual mandate is different. It is essentially threatening
to fine you for not doing something. You can get fined if you don’t buy
health insurance. That’s a first under the Commerce Clause.
The Obama administration’s position is that the mandate is constitution
because everyone participates in the healthcare system.
They argue that the decision to not purchase health insurance has
repercussions on government budgets, insurance profitability and
people's premiums.
Uncompensated care provided to people without insurance creates adverse
affects on the interstate health care market, they say.
They also say health insurance is the best way to keep people from
shifting their health care costs onto other people in the health care
market.
OK, but doesn’t that open up the proverbial Pandora’s Box?
I mean, if the government can force you to buy health insurance because
if you don’t, it’s hard on the health care market, what else can the
government force you to do?
You are overweight, likely causing you to be more of a strain on the
health care system. You’re not a member of a health club. Can the
government force you to buy a membership at the local YMCA for the
greater good of the health care system?
You drive an SUV, likely causing you to use more fuel, increasing
pollution. The environment affects everyone. Since you’re not driving a
fuel-efficient car, can the government force you to buy a Prius for the
greater good of the environment?
Maybe those are false analogies. Maybe I’m coming up short in Commerce
Clause logic. But it seems to me we’re in some troubled waters if we
say it’s cool for the government to force us to buy stuff for the
greater good.
This will wind up before the U.S. Supreme Court sooner than later. I
can’t wait to see how they rule.
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