Sunday, May 23, 2010

Case Closed on the Conservative Attack on the Health Insurance Mandate

I've written several posts on the right wing attack on the requirement that individuals obtain health insurance or pay a modest penalty, most recently here and here.

Although the challenge to the mandate being brought by twenty Attorneys General (all but one Republican, and many seeking credentials for forthcoming election campaigns) has not yet come to court, in my view the case is now closed. What convinced me is an article by Charles Fried, the brilliant constitutional lawyer who served as Solicitor General under President Reagan from 1985 - 1989.

Fried cites a recent 7 - 2 Supreme Court ruling in the recent United States v Comstock case. The question in Comstock was whether the federal government has power to detain persons deemed sexually dangerous when their prison sentence has been served. All justices except Thomas and Scalia agreed that the Constitution allows the federal government to regulate interstate commerce and protect the public from harm, such as the danger posed by the appellant.

Here's what President Reagan's Solicitor General had to say about the suit against the mandate:
For the health regulation to work, though, it is “necessary and proper’’ — the clause explicitly in play in Comstock — to nudge (with the $700 penalty) the young and healthy to enter the insurance pool, and not to wait until they are old and infirm. Insurance just won’t work if you could wait until your house is on fire to buy it. But, say the objectors, this is not penalizing someone for doing something harmful; it’s penalizing him for not doing something, and that’s somehow different.

It is not. Congress has the power to enact the regulatory scheme and to design it in a way that is “necessary and proper’’ to its good functioning, and that means sweeping in the unwilling...

A more telling precedent is the Supreme Court’s 1905 decision in Jacobson v. Commonwealth, which rejected a complaint against Massachusetts’s compulsory vaccination law that it said infringed the “inherent right of every freeman to care for his own body and health in such way as seems to him best.’’

Whatever Jacobson’s right to care for himself, he had none to impose risks on his fellow citizens. A healthy, young person who persists in staying out of the insurance pools imposes a burden on his fellow citizens also.
The Supreme Court will ultimately have to rule on the constitutionality of the insurance mandate. But when the leading conservative constitutional lawyer sees the law as Charles Fried does, it's a stake in the heart of the Attorney Generals' suit. And if the Supreme Court recognizes the same communitarian values that Fried emphasizes, it will provide an important piece of moral education for the country.


F. said...

Mr. Sabin;

In this article you wrote:

Whatever Jacobson’s right to care for himself, he had none to impose risks on his fellow citizens. A healthy, young person who persists in staying out of the insurance pools imposes a burden on his fellow citizens also.

This is ONLY true if you accept the premise that the government (i,e, the taxpayers) has the obligation to pay for everyone's healthcare, which, if you understand The Constitution and the intent of the founding fathers you know it does not.

You cannot compare the threat of one individual's potential to infect his neighbors with a deadly disease, to the questionable legal or moral obligation that those same neighbors may have to pay for his healthcare if he can't afford to do so on his own. Any attempt to do so opens our society up to a never ending flood of similar illegitimate "obligations" (entitlements) that can only result in the bankruptcy and destruction of our system of government.

By doing so, your virtually guarantee that sooner or later, some low life parasite, spurred on by some greedy and unethical lawyers, will file a suit against the state claiming that the state is obligated to buy him a decent house or a decent car since the pain of humiliation that he suffers from, by virtue of his NOT having an "equal" level of status with his neighbors, could cause him to go "postal" and inflict terrible damage on the community.

The reason why such a far left "progressive" concept of government has always failed in the past, and will ALWAYS fail in the future, is, as Margaret Thatcher famously said, is "that sooner or later you run out of other people's money!"


Jim Sabin said...

Hello F

Thank you for your comment.

I actually think the Constitution, in the first sentence, by specifying the goal of "promot[ing] the general Welfare," puts forward the responsibility of our society to provide for the health of the citizenry.

This doesn't have to be done by and through the government (though many thoughtful folks favor that approach), but the government needs to create a framework for health care to be available, just as it creates the framework within which we conduct commerce.

The health reform law turns cartwheels in an effort to create universal access to care within a framework of employer based private insurance. This won't work unless we all take part. It might well be that having us all take part via tax supported insurance vouchers would be less offensive to our sense of autonomy than the mandate that we must purchse insurance or pay a penalty. As your comment emphasizes, that requirement goes against the American grain, even if, as I believe will happen, the Supreme Court ultimately rules that the law is constitutional.