Sunday, March 25, 2012

Health insurance not just any product

Many conservatives argue that Obamacare is unconstitutional because Congress doesn't/shouldn't have the power to regulate inactivity. It's fine to force people to buy car insurance or build factories that pollute less because these are economic actions people have chosen to make, and Congress has a clear role to regulate interstate economic activity. But punishing inaction, as the Obamacare mandate does, is unprecedented, and the law should therefore be thrown out as Congress does not have this power under the Constitution. But given that we are mortals who will eventually get sick and die, we must one day involve ourselves with the health care industry, and Congress has a role in regulating how this involvement is paid for. This has been previously discussed in this space.

Let's talk a bit more about why this distinction is important. We will all eventually get sick and need care. If one decides to not buy insurance, they are really deciding to get their medical care from emergency rooms and to pay for their future medical bills with a combination of savings, borrowing from friends, credit cards and charity. Obamacare says that this combination of decisions, which cause about $43 billion in uncompensated care every year, which is passed on to those of us with insurance, is illegal. The Supreme Court has held in Wickard v Filburn and Gonzalez v Raich that Congress can regulate personal private activity if it causes disruptions in the larger market. In Wickard, it was a farmer who wanted to grow wheat for his own personal use, in violation of 1930's era quotas. In Raich, it was a medical marijuana patient who was growing weed for her own use.

Congress has the right to impose an individual mandate due to the unavoidable involvement of every citizen with the health insurance injury. This is what makes a mandate for health insurance different from a "slippery slope" inspired proposal for a mandate for daily intake of broccoli; biology necessitates involvement with health care, but not broccoli.

Given that choosing to self-insure (through savings/borrowing/credit cards/charity) is just as much economic activity as choosing to buy insurance, I am confident that the Supreme Court will follow precedent and uphold Obamacare.


methodism>secularism said...

Like most Americans, the branch of government that I have the least exposure to or knowledge of is the court. So this may sound crazy and ignorant, which is what it probably is...but...Is there a way for the court to strike down the mandate and keep the rest of the law? Could it be that democrats had this in mind the whole time, namely, to require a mandate to earn the tacit support of insurance companies, and then have it struck down in court, effectively allowing any sick person to buy coverage only when they got sick...thus annihilating the insurance industry? Perhaps too Machiavellian even for the democrats, but is it possible?

PoliticalDoctor said...

Thanks to an oversight in writing the bill, the Court has pretty much free rein to do whatever they want to the law. They can just get rid of the mandate, they can trash the mandate and go back to allowing insurers to exclude those with pre-existing conditions, or they can trash the whole thing.

This article ( discusses the issue.