Tuesday, February 08, 2011

The Individual Mandate and the Constitution

Laurence Tribe has a new column spouting old ideas in the New York Times justifying ObamaCare in general and the individual mandate in particular. I've written about this before in general but he places his arguments in a nice row, just begging for them to be knocked down.

He starts his arguments with this rhetoric question: Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

The answer is, of course, "no" but ObamaCare goes much further than just regulating the insurance industry as we can see in his next paragraph:

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

The logic here is that Congress has written regulations but the only way for them to work is to expand their authority in an unprecedented manner. This is quite a reach, probably an overreach which is where the whole argument comes from - can Congress regulate an industry in such a way as to extend its power in ways not directly permitted by the Constitution?

Tribes sidesteps this question. He points out that the Court upheld Social Security in 1982 but ignores the fact that this is a requirement to participate in a federal program, not a mandate to buy a commercial product. One of the great ironies of ObamaCare is that Canadian-style or British-style socialized medicine would be easier to reconcile with the Constitution but is politically unworkable.

He then offers this argument:

Individuals who don't purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can't pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

This contradicts his earlier argument. The whole point of the individual mandate is to force people who are unlikely to need insurance to buy it anyway. With insurance premiums, even under Obamacare, running hundreds of dollars a month, the money that individuals in this group save by not belonging to ObamaCare will pay for quite a bit of emergency care. Hospitals are obligated to offer free emergency room care to the poor but we are not talking about them. We are talking about healthy people who are gainfully employed but do not have the level of coverage mandated by ObamaCare. If they need treatment then they will be billed. It is also possible that they are carrying catastrophic care insurance which would cover them in case of a major expense but is not considered sufficient for ObamaCare.

Tribe pulls out his trump card:

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

Is ObamaCare a tax or isn't it? While it was being debated in Congress, supporters insisted that it was not. Now that it is law, they say that it is. Regardless, the tax argument has a few of its own problems. The Constitution gives Congress the right to impose taxes but states that "Duties, Imposts and Excises shall be uniform throughout the United States." Is a tax that is levied only on people who did not participate in a commercial transaction uniform? Just as with interstate commerce, this would be the first tax levied on people for inactivity.

Tribe goes on to dissect the individual justices and why he is sure that they will "do their constitutional duty". Most of this is wishful thinking. The only interesting part is the statement, "It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal "right" to opt out of the social contract."

Tribe is correct. It would be asking a lot. There is no reason to think that the justices would allow the law to stand but add in an exception. That is why the Florida judge ruled that the entire law is void.

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