What is so unique about health insurance?

This week the Supreme Court heard arguments about the Affordable Care Act, focusing primarily on the constitutionality of the mandate that all people buy health insurance or face a financial penalty. I’ve been reading a lot about the case and found the arguments very interesting. I want to address two items that seem likely to be important to the eventual decision.

First, is health insurance fundamentally different than other forms of economic activity? As Justice Scalia asked, is requiring all individuals to purchase health insurance the same as requiring them to buy a new car? The prominence of this question surprises me, because it seems like it should be very simple to answer. Healthcare is unique in that every member of society will be a consumer of it at some point, and when and how much is completely unpredictable.

This takes two forms. The first is in terms of risk: Anyone who cannot afford to pay for emergency surgery out of pocked, which is most of the population, is gambling by going without health insurance. If they were to have an accident or contract a disease requiring expensive treatment there would certainly be consequences for them, but they would receive the treatment they need, and society would bear the cost. In many cases opting out of treatment entirely isn’t even an option. Part of being a member of our society is having the protection of our medical system available to us.

The second is in terms of time: A young healthy person who does not need health insurance will, again with the exception of the incredibly wealthy, someday become sick and need health services they cannot afford. In this regard the individual mandate is forcing people into the market earlier, rather than forcing people into a market they could otherwise choose not to enter.

Many people seem certain that it is unconstitutional for the government to require an activity vs. an inactivity. There is no such language in the constitution. Rather it is an interpretation of it, and, at least according to some credible people, has very little to do with the text of the constitution.

Charles Fried:

Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story.

Here’s another thing Marshall said. To regulate is “to make the rule for.” Does this make a rule for commerce? Yes!

Akhil Reed:

 The limit is the Constitution. What Congress does has to be in the enumerated powers. One of those powers is the Interstate Commerce Clause. What are the limits on that power? It only applies to regulations that are interstate and commercial. So Congress has to be actually trying to address a commercial problem that spills over state lines. And that’s clearly true here.

So here it seems there is a clear answer to “where in the Constitution does congress get this power?” The question I’ve not seen addressed clearly is why that answer isn’t enough. Most of the argument I’ve been able to find calling the mandate unconstitutional focus on the curtailment of freedom, the unprecedented nature of the law, or some other ideological opposition that addresses what limits they want on the government rather than the text of the Constitution.

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3 responses to “What is so unique about health insurance?

  1. Hillsdale collage offers a free course in “Constitution 101” I suggest you take it, because you obviously don’t understand the document in the slightest. For a quick rundown here is the jist of it in a nutshell, Article 1 Section 8 is the portion that covers the “Powers of Congress”. It’s about 429 words long, so a bit too much to quote here, but just Google “Article 1 Section 8” and read up. Next is the the 10th ammendment which says… “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So since there is no delineated power that allows congress to compel us (We the people) to do or buy anything, then Obamacare is unconstitutional, period. As for your argument that sooner or later everyone will need it, so just force everyone to get it now or we all pay, is equally naïve. Everyone needs a balanced diet, and shelter from the elements, does that mean that congress can force us to eat our vegetables and buy a house or rent an apartment? My parents raised me to be a self sufficient, productive member of society, I neither need, nor want a nanny state to take care of me, or to compel me to take care of anyone else.

  2. A very well thought out post… In your research have you come across this Politifact piece where they delve into the other 3 mandates put forth by Congress back as far as 1790 when many of the Founders were still serving and seemed to be comfortable with such powers of Congress and the federal government?

    http://www.politifact.com/rhode-island/statements/2012/jan/13/einer-elhauge/harvard-law-professor-says-early-congress-mandated/

  3. mpbulletin: Thanks, that’s interesting. I had managed to miss that.

    heyrob4449: So do Fried and Reed need to take an into to the constitution course as well? I’m not making my own argument here, I’m citing theirs. That argument is very clearly stated above, that the enumerated power given by the commerce clause applies to the individual mandate.

    As to the second part of your reply, the government does not require that private companies provide those things to you regardless of your ability to pay. The government does require that healthcare providers give you life saving emergency care should you need it even if you can’t afford it. That makes the relationship between the government, healthcare providers and their customers both unique and problematic, which is why the necessary and proper clause can be argued to apply.

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