Health Care Reform and the Individual Mandate

Here's a message Rob sent to me, and my reply:

Hi Dad,

I confess I didn't have time to read all of this, so you certainly may not...

It's a law professor's (who actually does some work in connection with the Constitution Project) take on the health care reform. I read just a bit, but what I gather him to be saying is that the legal opinions in VA and FL which strike down the health care law conflate people's libertarian streaks (they don't want to be told what to do) and constitutional arguments. The way he sees it, states unquestionably have the authority to impose an individual mandate, so it's merely a question of whether the federal government does too. I'm not sure if I'm able to explain the argument fully (especially without having read the whole thing!) but these are the two paragraphs that were excerpted that called my attention to the piece in the first place:

Near the end of his decision, Judge Hudson writes: “At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate.” Virginia Attorney General Ken Cuccinelli, who brought the suit, echoed that point the day the decision came down, insisting that “this lawsuit is not about health care. It’s about liberty.” But that is exactly what the case is not about. A decision that Congress lacks the power to enact the individual mandate says nothing about individual rights or liberty. It speaks only to whether the power to require citizens to participate in health insurance, a power that states indisputably hold, also extends to the federal government. The framers sought to give Congress the power to address problems of national or “interstate” scope, problems that could not adequately be left to the states. The national health insurance crisis is precisely such a problem. The legal question in the case is about which governmental entities have the power to regulate; not whether individuals have a liberty or right to refuse to purchase health-care insurance altogether.

But Judge Hudson and Ken Cuccinelli’s misstatements are nonetheless telling. Opposition to health-care reform is ultimately not rooted in a conception of state versus federal power. It’s founded instead on an individualistic, libertarian objection to a governmental program that imposes a collective solution to a social problem. While Judge Hudson’s reliance on a distinction between activity and inactivity makes little sense from the standpoint of federal versus state power, it intuitively appeals to the libertarian’s desire to be left alone. But nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one’s health care to others. So rather than directly claim such a right, the law’s opponents resort to states’ rights.

Love,

Rob

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Hi Rob,

As I’ve sent articles to you, I’ve been happy I have a son who is not only an attorney, but an attorney interested in constitutional issues!

The analysis below is good, though you know how unhappy I can get about this issue. Some thoughts:

In this country, when you lose in the Congress, the courts are the only recourse. In a court you have to define your arguments in constitutional and legal terms.

I’ve said from the start that the individual mandate, while not clearly in violation of the Constitution’s letter, does violate our unwritten constitution. That’s why you hear speech these days about our social compact. The constitutional arguments about individual liberty and the health insurance mandate identify the core issues correctly.

I believe that if the individual mandate stands, it will become part of our social compact, just as social security did in the 1930s and Medicare did in the 1960s. Backers of last year’s health care reform point to those two programs as success stories, worthy precedents for the current health insurance mandate. Opponents like me see those programs as a primary cause of the financial difficulties that pushed the country toward comprehensive health insurance reform. Rather than address the financial problems, we enacted reform that will make the financial problems worse. These financial problems extend not just to government, but to businesses and individuals as well.

When we enacted social security in the 1930s, we didn’t have experience with comprehensive social programs. People made similar arguments then about the constitutionality of the new retirement program. We’ve accumulated a lot of experience with comprehensive programs since then, nearly three generations of it. People show a lot of passion in their judgments about such programs, and they should. The resources involved, and the impact on every person’s life, is quite large.

I pointed out the personal source of my own passion to Leslie not long ago. The individual mandate puts me in a position where I cannot quit my job without being fined. Yes, I could look for insurance on the private market if I had no job. As a Massachusetts resident, I’ve been in this position since 2007. Still, enactment of an individual mandate for the entire nation had a big psychological impact on me. Part of the impact results from the other ways government has increased its power recently, and my resistance to every change of that nature. Part of the impact results from my own situation as a job holder who has health benefits. It has become another issue I try not to think about too much.

Enough for now. I have done too little work today!

Love,

Dad