Previewing Day Two Of Health Care Reform Oral Arguments
Tomorrow, the United States Supreme Court continues hearing arguments regarding the Patient Protection and Affordable Care Act (PPACA), a.k.a., Obamacare. This time, the Court will consider the arguments related to the “main event” of the hearings: the constitutionality of the law’s individual mandate. The individual mandate requires every American, with a few exceptions, to purchase a government-approved health insurance plan, or be forced to pay a fine.
Modern jurisprudence has increasingly allowed the federal government to regulate commerce that is not of an obviously interstate nature. The issue here is that PPACA goes further and regulates the non-purchase of a good or service. Rather than simply regulating the manner in which the health insurance market will operate, PPACA requires that everyone in the country buy something, or be fined. Under this paradigm, market participation would no longer be required for regulation under the Commerce Clause; instead, and in a very real way, the feds would subject you to a purchase requirement merely for being a living, breathing American.
That is a problem. Having a health insurance plan makes sense, but compelling Americans to buy a health insurance plan through heavy-handed federal coercion is awful policy and arguably unconstitutional. Reading into the U.S. Constitution a federal right to demand purchases from its citizens would eviscerate many of the limits on government power enshrined in that document.
If the federal government can require individuals to purchase health insurance, what can’t the federal government require us to purchase? Ilya Somin, a law professor at George Mason University who has filed a brief with the court, contends that if PPACA passes constitutional muster, then Congress could pass “a broccoli mandate, a car-purchase mandate, really any other mandate that you’d want.” Where is the line against such coercion drawn if not by the plain meaning of the Constitution?
Proponents of PPACA have dismissed the suggestion that the federal government would impose a “broccoli mandate,” arguing that the federal government would never try to expand a mandate to purchase goods and services into such areas. But Americans should not have to entrust their freedoms to the word of politicians and bureaucrats, well-meaning or not.
There is no “just trust us” clause in the Constitution. The Constitution is the check that keeps capricious leaders from doing capricious things, and should remain so.
What do you think of the amicus filed by economists including Ken Arrow and George Akerlof, where they argue particularly that:
“The decision to forgo insurance is not “inactivity”. Studies demonstrate the decision to forgo insurance is typically not inadvertent but made on a reasoned and conscious basis: to assume the risk that significant medical costs can be avoided and to rely on the safety net of free care if that assumption proves faulty. That decision directly and immediately affects an industry that represents more than 17% of our gross national product. Thus, an individual’s decision to forgo health insurance has enormous implications for the national economy and is not several steps removed from interstate commerce, as the Court of Appeals found.”
http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/11-398_petitioner_amcu_econscholar.authcheckdam.pdf
Comment by Eapen Thampy — March 26, 2012 @ 5:21 p.m.
[...] post originally appeared at Show-Me Daily, the blog of the Show-Me Institute. [...]
Pingback by There is no “just trust us” clause in the Constitution « The Greenroom — March 26, 2012 @ 6:12 p.m.
@Eapen
You are assuming the conscious decision to forgo insurance is one that has “enormous implications for the national economy”. Many people choose to go without insurance for a time (as I once did in my mid-20’s) for many reasons and do not suffer significant health expenses.
If the mandate is constitutional then the Federal government gains the right to compel us to undertake any activities that might positively benefit the national economy, even if we curtail the scope to just health. Yearly doctor exams will help the economy by discovering conditions early, should the govt mandate yearly exams? Being overweight leads to many health problems, should the govt mandate a weight range for each American with a “tax penalty” for those who exceed it?
Comment by Jesse Gregg — March 27, 2012 @ 6:49 a.m.
If the Federal Government can mandate the purchase of a product for each citizen, why can’t they also mandate that all 401ks include in their investments Federal approved Green Company investments?
Be an easy out from getting a hit because they poured Tax Money down prebankruptcy financial black holes
Comment by Dan Kauffman — March 27, 2012 @ 8:08 a.m.
I’m surprised that the main point against the individual mandate is the “slippery slope” argument. Seems as if any 1L gunner sitting in a conlaw class could have just as easily come up with that one, but then again, there is rarely an example that fits so well into the slippery slope cookie cutter as this. Honestly though, throughout the history of the country, the commerce clause has been expanded time and time again and I will not be surprised at all if the mandate is upheld.
What concerns me are these penalties (that are totally, in no way, taxes). How are they going to be enforced? Will wages be garnished or withheld, or will those who forego insurance receive some sort of fine in the mail, akin to a traffic ticket? (I’m sure these details are established somewhere already, I was just not aware where.)
Finally, all I can say for certain, is that my Federal Courts class is spending the entire hour today listening to the oral arguments instead of covering the assignment on the syllabus. For that, I am thankful.
Comment by Jake Voss — March 27, 2012 @ 9:35 a.m.