Monday, December 13, 2010

Individual Mandate Ruled Unconstitutional

Here is but one choice quote from the judge in Virginia (see here for the whole decision: "The use of the term "tax" appears to be a tactic to achieve enlarged regulatory license."

There were a couple main parts of the decision; this quote was a summary of why the penalty for not buying insurance cannot now be construed as a tax, and therefore constitutional under the taxing power.

The main part of the decision lays out the arguments for why inactivity cannot be regulated under the Commerce Clause, and why regulation of inactivity cannot be construed as constitutional under the Necessary and Proper Clause.

All in all, a very intriguing development. It concerns me that so little thought was put into this issue during the legislative process -- recall Nancy Pelosi's comments almost questioning someone's intelligence for even thinking that the law might be unconstitutional. "When CNSNews.com asked House Speaker Nancy Pelosi (D-Calif.) on Thursday where the Constitution authorized Congress to order Americans to buy health insurance--a mandate included in both the House and Senate versions of the health care bill--Pelosi dismissed the question by saying: “Are you serious? Are you serious?”"

Was so little thought also put into other elements of the health care bill, as in the employer mandates?

I think our country, through employers primarily, are in for a major regulatory burden because of this law. And it did not need to be that way.

See posts below on thoughts of avoiding the individual mandate. There are ways to get much of what we need to do in health insurance reform without an individual mandate. We will have to, however, be willing to face the consequence that someone who willingly goes without health insurance will be put into a high risk pool with limited coverage.

Admirers of European socialist-leaning democracies and health care reform zealots will bemoan the lack of Federal power in prescribing behavior of US citizens. I view this decision as a firm reminder that some principles stand above even health care -- as in, our system of a constitutional democracy whereby the Federal government has limited and enumerated powers. As much as we might like the ends here, the means are simply not justified, and that is a more important principle than getting health care for all through an individual mandate.

1 comment:

Unknown said...

I am not sure what the supreme court will do but I think they will rule the individual mandate unconstitutional.

I can see (with a big stretch) the argument that virtually everybody is in the commerce of health care because eventually everybody does get sick. We don't know who of these will go bankrupt from medical bills. And congress is trying to regulate the market because those who do go bankrupt from medical bills shift costs to others. Some argue that the uniqueness of this situation is a limiting principle. Now IF we accept this as the limiting principle then I can see a mandate that forces people to buy catastrophe insurance only ( bankruptcy type insurance ) as being constitutional. But I cannot see the current mandate which covers things in addition to catastrophe like maternity, paternity and drug counseling.

Certainly virtually everybody without insurance can go bankrupt from an unpredictable medical disaster ( cancer, car accident etc ). But things like pregnancy for the most part are predicable ( by responsible people anyways ) and individuals that do not have pregnancy coverage because they don't ever want kids are not shifting any future pregnancy costs to others. Therefore the limiting principle discussed before would not apply.