Would a Federal Mandate to Buy Health Insurance be Constitutional?
Morgen on October 24, 2009 at 8:55 am
There is an interesting discussion going on over at Hot Air regarding whether an individual mandate to buy health insurance would be constitutional. Ed Morrissey seems to have serious questions as to whether it would:
So I’ll ask again: What authority does Congress have to mandate that people buy a product? What precedent do they have to threaten people with imprisonment if they don’t buy a product merely for existing, as opposed to a prerequisite for accessing public roads as with car insurance? The reason why Pelosi, Leahy, and Hoyer refuse to answer those questions is because they don’t have an answer to them.
A few brave souls will argue that the “general welfare” clause means that Congress can mandate anything that they see as beneficial, but that misreads the word general – which meant the welfare of the nation as a whole, not a responsibility to make each individual citizen’s life choices for them. The opposite reading would have made Congress a totalitarian monster, with the executive as its hatchetman, and the founders would have scoffed at such an interpretation.
The Constitution exists to limit the power of government and each branch, reserving most of the power to the states or to the people. Claiming that Congress has the power to dictate that we must buy into health insurance by claiming that all that is possible must therefore be mandatory is arguing that Congress has a dictatorial, unlimited power over every aspect of our lives.
For the counter side of this argument, I’d recommend this Politico article by UC Irvine law professor Erwin Chemerinsky. (Chemerinsky focuses on the Commerce clause to argue that Congress has broad powers to legislate rules and regulations dealing with the health care industry).
Here’s my take: I don’t know. And with all due respect to my friend Ed Morrissey and professor Chemerinsky, I don’t think anyone else really knows either. Simply because there is no precedent for this type of action by the federal government, as noted by this 1993 article from the CBO addressing the possibility of an individual mandate under HillaryCare:
A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law.
Unless I’ve missed something in the proceeding 15 years, this statement remains just as true to this day. And so given that this has never been done before, and the lack of specificity in the Constitution addressing this type of issue, I’d say it’s an unsettled question. One which likely would need to be settled by the Supreme Court.
Although I have sympathy for the argument for an individual mandate based on the free-rider problem, I think it would set a dangerous precedent for federal intrusion in other areas of our lives. And so I ultimately hope it would be held unconstitutional. But I have to say that I’m not optimistic this will be the case given the Court’s 200+ year history of legitimizing the expansion of the federal government under the Commerce clause.
Category: Crime & the Law, Health & Education |
I think the real issue here is the question, who has the burden of proof? Something that is not specifically stated in the Constitution and not established by court precedent should have a LONG way to go to push the rock to the top of the hill.
October 24, 2009 @ 12:20 pm[...] to Congress that it would take an “unprecedented” step in issuing such mandates (via Verum Serum): AN INDIVIDUAL MANDATE WOULD BE [...]
October 25, 2009 @ 10:32 am[...] Morgen at [...]
October 25, 2009 @ 2:29 pm[...] Verum Serum finds this problem for Dem’s isn’t new, it was a stumbling block for Hillary care back in the 90’s too. A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government. Federal mandates that apply to individuals as members of society are extremely rare. One example is the requirement that draft-age men register with the Selective Service System. The Congressional Budget Office (CBO) is not aware of any others imposed by current federal law. [...]
October 25, 2009 @ 6:08 pmPresident Barack Hussein Obama made a speech to Congress regarding healthcare. He made several assertions about his proposal to overhaul the healthcare system that I believe are inaccurate. He stated, “One man from Illinois lost his coverage in the middle of chemotherapy because his insurer found that he hadn’t reported gallstones that he didn’t even know about…they delayed his treatment, and he died because of it.” The truth is the man did not die because of delays; his insurance policy was reinstated within three weeks and later received a stem cell transplant and died this year nearly four years after initial problems with his insurance. The man’s sister, Peggy Raddatz stated he received the treatment that extended his life approximately three years.
In Oregon, there was a woman, Barbara Wagner that wanted to get treatment for cancer but the state refused to pay for the treatment. She was 64 years old and the treatment would be too expensive, but the state run healthcare plan offered to pay $50.00 for the suicide pill. The state offered to pay to have her euthanized! Dr. Jeanene Smith, administrator for the Office of Oregon’s Health Policy and Research stated, “We need evidence to say it is a good use of taxpayer’s dollars.” Therefore, would this be considered a “Death Panel” decision?
Obama has denigrated Doctors with comments like, if there was a red pill and a blue pill the doctor would prescribe the more expensive pill, or if your child has a sore throat the doctor may recommend taking the child’s tonsils out to make more money. Obama claims doctors would not treat diabetics so they would be able to amputate the patients’ feet to make more money, which he said ranged between $30,000 and $50,000 for the surgery. Actually, Medicare reimbursement to the surgeons for that type surgery ranges from $740 to $1140 according to the American College of Surgeons.
These would be ridiculous statements coming from anyone, let alone the President. President Obama, do you realize doctors take the Hippocratic oath where they swear to practice medicine ethically. You have traveled the world apologizing for America; I think you owe an apology to the doctors that you have denigrated with your outrageous statements
During his many speeches on healthcare Obama has never praised the greatness of our system. Our healthcare system has created innovative drugs, medical devices, and prosthetics, advanced surgical techniques, transplants etc. Doctors and nurses are dedicated to their profession and work long and hard to treat the sick. People from around the world come to this country for healthcare, contrary what Michael Moore would have you believe, they are not going to Cuba.
Obama wants to set up an exchange where people can go to on the Internet and choose the coverage they like. With the exchange, he says costs will be reduced because of competition among the insurance companies. Ultimately, Obama is looking for a single payer government run system. However, he said it would take 4 years to set up. If you do a Google search you can get a list of insurance companies and various coverages today. So, why would it take 4 years to set up? Why not let the insurance companies offer their services across state lines? This would create competition, which would lower costs and could be done in a matter of days instead of years.
He says everyone will be required to have health insurance, and if an individual refuses to get it will be fined $3800.00 under one bill and up to $25,000 along with a year in jail under another bill. The Government through the healthcare plan will have access to your medical records, tax returns and bank accounts. Thus they will be able to control individuals by having access to their records and will tell you what you can eat, and what you will be able to do because it will be tied to healthcare. The government will be able to control our lives, thus the loss of liberty
Obama wants to force individuals to purchase health insurance and compares it to having automobile insurance, where it is mandated by the states that you must have coverage. The comparison to auto insurance falls short because everyone does not own a vehicle or drive, therefore everyone does not purchase auto insurance. You are mandated to have liability insurance only, which covers the other person in case you have an accident with them. Furthermore, insurance does not cover maintenance on an individual’s vehicle; if the vehicle needs an oil change or gas etc. it is paid out of the persons pocket.
So, how can the government force you to buy something you do not want? Would it be constitutional?
He stated there are 100’s of billions of dollars in waste and fraud in the system and this will lead to reduced costs after the healthcare plan is passed.
What does passing the healthcare plan have to do with waste and fraud in the system? If the assumption is true about the waste and fraud then I have to ask, “Why is Obama, or any politician not doing something about it now?” The Government should be investigating and prosecuting any wrongdoers, and it should have been done “Yesterday.”
Some politicians want to tax the healthcare insurance provided to them by their employers. There is opposition to that proposal, but when you think about it, it should be taxed because it is compensation. However, regarding taxes, I am for a flat tax, but that’s another discussion.
My preference would be that employers pay their workers for the work they do and not provide healthcare for their employees. The following are the problems with employer provided healthcare:
The companies choose the policy, which may or may not be in the individual’s best interests.
The policies are not portable, so the individual has to continue working for the company to keep
their healthcare.
People should be compensated for the work they do and be able to buy what they want to buy when they want to buy it.
Why not expand heath savings accounts where it gives the power to the people over their money and treatment?
What I want to emphasize in the Government’s proposal to overhaul the healthcare system is it is about control and the loss of freedoms. The loss of freedom will occur because you will be told what you can do and what you can eat etc. because it will be tied to healthcare. To pay for it Obama wants to put the squeeze on doctors, hospitals, and pharmaceuticals reducing their compensation. Taxes on beer, wine, liquor, and tobacco would go up. Soda and other sugary drinks and cereals would also be taxed because they lead to obesity. The idea behind the proposed increases is to tax lifestyle choices that contribute to rising medical costs, thus controlling our lives!!
Solutions to healthcare: Eliminate the waste and fraud and recoup that money.
Eliminate employer provided healthcare coverage; individuals should by their own insurance.
Expand medical savings accounts, which would give people control over their money and treatment.
Allow insurance companies to sell insurance across state lines; this would increase competition.
Tort reform; doctors are doing defensive medicine because of lawsuits.
The United States has the greatest healthcare system in the world. Sure it needs to be fine-tuned but we do not need socialized medicine or universal single-payer healthcare (Obamacare). I urge everyone to contact their representatives in government and have them oppose this government takeover of the healthcare system.
Greg Zotta
October 26, 2009 @ 10:03 pmThe Health insurance mandate is not like the auto insurance mandate that requires us to be able to pay for any automobile accident that we might get in before we are allowed to drive.
Some argue that because other rate payers or taxes will pay the bills for those who run out of money that the health insurance mandate is comparable to the auto insurance mandate.
I don’t agree. I can’t afford to pay $5,000 a year for the right to breathe and I don’t want to pay $2,000 for a policy with a $10,000 deductible. That sort of policy would be illegal under the Bills being proposed anyway. My pre-existing condition is being 49 years old.
Health care in America is a rip off in so many ways and is practically a criminal operation in many ways. The government has protected the health care industry from competition and will continue to do so.
I would say that the health insurance feels contrary to the spirit of the US constitution but so did the draft into the military and that is still considered constitutional. Anything like slavery feels like it should be unconstitutional but it took a long time before literal slavery was rejected.
October 27, 2009 @ 4:40 pmYeah, health care is like slavery.
What a bunch of jokers.
November 11, 2009 @ 8:31 am@Velcro – The burden of proof lies in the words in the constitution. If the constitution doesn’t specifically GIVE the federal government power, then the power in question is left up to the states.
Because of that, health insurance is a state issue…not a federal one.
The Government CANNOT force you to buy anything. That is the exact reason why Social Security is structured the way it is. The structured it as a tax to get around the ‘forcing to buy something’ issue.
December 17, 2009 @ 1:36 am