On Nov. 14 the Supreme Court agreed to judge the constitutionality of the recent mandate to buy health insurance. Opponents of the mandate claim that the constitutional power of Congress to regulate commerce does not permit Congress to force people to buy insurance or anything else.
However, there is support for the mandate both in the Constitution and from precedent. Americans have long had to pay for Medicare regardless of whether they want it or not. The only difference between the mandate to pay for Medicare and the mandate to buy health insurance is that people pay for Medicare only after willingly entering employment. Mandating insurance for employment, though, is established by the commerce clause. So opponents are therefore arguing not over the substance of the mandate, but instead over the context in which it is imposed.
There are several groups of people who have been mentioned as being affected negatively by the new mandate. Mainly, there are people who are either ill or have other risk factors which would cause increased premiums, and there are people who simply can’t afford health insurance even though they are healthy. However, the health care reform law in general addresses these groups of people through reforming premiums, expanding the Medicaid program, subsidizing the purchase of insurance, and entirely exempting some people from the requirement in some cases. Therefore, the law will allow these people to have access to affordable insurance or to have no penalties for not purchasing insurance.
Regulatory requirements on commerce are entirely constitutional. Cars are required to have air bags, people are required to have pensions for retirement, nutritional facts are required to be printed on food products, etc. A requirement for people to buy health insurance to lessen the level of strain that uninsured people place on the state would only be regulating commerce to the same extent as these other requirements.
Ultimately, the cost of people who have no insurance but need health care which they cannot afford shifts the cost instead to taxpayers who have bought insurance. Further, doctors then charge more for insured people because the uninsured are unable to pay.
The argument that the commerce clause renders the health insurance mandate unconstitutional is therefore invalid. The mandate is permitted by the necessary and proper clause which gives Congress the power to pass laws which facilitate the execution of constitutional powers.
Without the mandate, provisions that insurance companies insure sick people and reduce premiums would become ineffective because it would encourage healthy people to avoid buying health insurance until they become sick. If only the sick are buying insurance, then prices would go up enormously and the entire health insurance market could collapse. Therefore, under the necessary and proper clause, the mandate would facilitate the provisions for insuring sick people, making it equally constitutional.
The mandate does not require people to subject themselves to health care, but rather to pay for any care that they may get. Even if the commerce clause did not permit it, the necessary and proper clause authorizes Congress to pass the mandate in order to regulate premiums and prevent rejecting sick people from being insured.
The United States Senate voted to pass the Patient Protection and Affordable Care Act (PPACA) on Dec. 24, 2009 by a vote of 60-39. The PPACA passed the U.S. House of Representatives on March 23, 2010. Also known as ‘Obamacare’, the PPACA is being sued by 28 of the 50 states in the U.S., some together, some individually, against the constitutionality of the bill.
These states are taking issue with a particular part of this healthcare legislation known as the individual mandate. Tucked in the 2,700 pages of the healthcare legislation, the individual mandate is the term used to describe the requirement within the PPACA to require all Americans, barring financial hardship or religious beliefs, to have some form of health insurance by 2014.
On Dec. 13, 2010, Virginia Federal District Judge Henry E. Hudson ruled the individual mandate not just unconstitutional but also dangerous, stating, “It would invite unbridled exercise of federal police powers.”
On Jan. 31, Roger Vinson, a U.S. District Court Judge for the Northern District of Florida, struck down the Patient Protection and Affordable Care Act as unconstitutional. Judge Vinson, who took issue with the individual mandate, struck down the whole piece of legislation, citing a lack of severability, a clause in a piece of legislation that allows for certain terms of the legislation to be independent of one another.
Federal Judge Roger Vinson wrote, “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. … It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place… Never before has Congress required that everyone buy a product from a private company (essentially for life) just for being alive and residing in the United States.”
Vinson also wrote, “If it has the power to compel an otherwise passive individual into a transaction … it is not hyperbolic to suggest that Congress could do almost anything it wanted.”
Historically, Congress has used the commerce clause to expand their power through legislation. James Madison, the ‘father of the Constitution’, wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
For the first time in our nation’s history, Congress is trying to force each individual American to enter into a contract with a private company or face a penalty from the federal government. Members of Congress, who make $174,000/year, have access to the health plan and life insurance policy available to other federal workers and will also draw money from Social Security, their Congressional 401(k) plan, and a pension plan, are now telling you that you have to own a product.
As Americans, we are inherently a group of consumers. We enjoy shopping for different products. Americans also enjoy saving money by not purchasing a product or enjoy spending their money on products that they don’t need.
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