The Healthcare Mandate: Necessary but Improper?

The debate over Judge Hudson's ruling against the healthcare mandate at least has the virtue of being interesting. Neither of the two rulings in favor occasioned much debate. Here, I will try to refine the issue a bit more than I did in my last post.

The Constitution grants Congress a number of explicit or enumerated powers. Among these is the power to regulate commerce, by which the Courts understand interstate commerce. The last clause in the enumeration of powers in Article I, Section 8 reads as follows:

The Congress shall have the power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This potent clause gives Congress a vast realm of implied powers. The effect is to extend the enumerated powers without any obvious limits. For example, what gives Congress the power to set a national minimum wage? The commerce clause does so. Wages in South Dakota have a substantial effect on interstate commerce.

There is no doubt that the Necessary and Proper Clause was intended to enlarge the powers of Congress. Establishing a Post Office and building post roads implies paying the salaries of Post Office employees. This is not only necessary to making the system work as planned. It provides an essential flexibility to the Constitution that allowed it to remain workable over time. No one questions the power of Congress to create an Air Force to go with our Army and Navy, though for some strange reason the 1787 doctrine didn't explicitly mention the former.

Here's the rub: to have any meaning at all, the Necessary and Proper Clause also has to limit the powers of Congress. Otherwise the founders might as well have said that Congress can do anything it damn well pleases.

Unfortunately, the Courts have not had much luck in discovering those limits. The distinction between interstate and intrastate commerce proved largely unworkable, due to the fact that the United States is a very integrated economy. I am not optimistic that the Courts will do better now.

There is in Judge Hudson's opinion a distinction that might put some meaning into the clause. There is plenty of precedent behind Congress's power to regulate virtually any activity, individual or corporate, that is conceivably commercial. Suppose a group of people decide to pool their resources to cover the medical expenses of any member of the group. That can be regulated as insurance.

The healthcare insurance mandate, however, covers inactivity. It penalizes people for not doing something: buying insurance from a private vender. Is it really proper for Congress to compel me to engage in an economic activity against my will, however necessary Congress might deem this to be for some project? So far as I know, all the Court's jurisprudence on such matters has been confined to the regulation of activity.

This might be the place to draw the line. Can Congress compel me to join a union? Can it compel me to go on a diet? If I am goofy enough to believe that vitamins can prevent HIV infection, Congress can stop me from selling vitamins with a "Prevents AIDS!" label. Can Congress deny me the right to refuse treatment with effective drugs? Congress can regulate the insurance industry sure enough. Can it compel me to purchase insurance?

As a judicial minimalist, I would prefer these questions to be settled by Congress and not by the Courts. As a Federalist, I think that Constitutional provisions ought to mean something. Lockean liberal, I think that the buyer should have the right to say no thanks. That is the point we have come to.

Comments

[duggersd]

What would happen if Congress deemed it necessary for every citizen over the age of 16 own a hand gun and a rifle as a means to help defend the country should the need arise? I suspect some people might object to that (including me).
As for being compelled to use certain drugs for treatment of a condition, it has already been established that Congress can do that. As a parent of a child who happen to believe those drugs are not "God's" will. We have seen several cases where children have been compelled to receive treatment against the wishes of the parents.

[Bill Fleming]

As per my comment below, we have already accepted the fact that Congress can compel us to buy insurance. That's what Social Security and Medicare are. Insurance.

[KB]

Bill: no, they aren't. They're taxes. The money collected goes directly into the general fund. Out of that, the Government, along with trillions in borrowing, government pays all its bills including Social Security and Medicare payments.

Forcing people to buy a product from a private vendor would be altogether novel.

[Bill Fleming]

Well, KB you could have fooled me.

"The Federal Insurance Contributions Act (FICA) tax (pronounced /ˈfaɪkə/) is a United States payroll (or employment) tax[1] imposed by the federal government on both employees and employers to fund Social Security and Medicare[2] —federal programs that provide benefits for retirees, the disabled, and children of deceased workers. Social Security benefits include old-age, survivors, and disability insurance (OASDI); Medicare provides hospital insurance benefits."

You know, if it looks like a duck and walks like a duck, and quacks like a duck...

[Bill Fleming]

Semantics. Why is it always about semantics with the neocons?

[Jon S]

Bill,

Semantics? Like, words mean things? Like we are rational creatures capable of speech and in order to reason with each other we need common definitions of things?

I see a difference between being taxed to fund a government program (SS or Medicare) and being forced to buy a private product. Do you?

My insurance policy and pension accounts are my private property, but my Social Security account is not. If I wanted to take money out of my IRA or pension fund I could (at a penalty). But I can't get my hands on my Social Security money even though I have an account number with the Social Security Administration. That's because it isn't my money, it's the government's. I am not purchasing insurance from the government (whatever the name); I am being taxed to support a government program.

I think Ken is wrong on the detail but correct in principle. As a matter of accouting all my SS and Medicare taxes are going into specific accounts (e.g., the Social Security Trust Fund) and are used only for those programs. In reality, those monies are spent on whatever and then SS/Medicare programs report money borrowed by the general fund as an asset in the form of an IOU from another part of the government.

[Bill Fleming]

Call the fine a tax then, Jon. You can either buy insurance or pay a tax. Simple. Next question?

Look guys, we have National Health already, it's just the least voluntary and most expensive form possible. I don't think it's helpful when you guys disingenuously play word games instead of talking about real problems and real solutions.

But hey, that's what you're good at, right?

[Bill Fleming]

What kind of insurance plan does John Thune have, by the way? Or other federal employees? Veterans? Are they paying insurance premiums, or paying a tax?

[Bill Fleming]

And who is paying for that insurance? The Federal Employee? Or the taxpayers?

[Bill Fleming]

Word games. Semantics.

[duggersd]

Word games and semantics said by the King of Word Games and Semantics. What is it with semantics by the liberals?

[Donald Pay]

This is really a no-brainer. No one is required to purchase any specific insurance product. They are simply required to be have a minimum amount of health coverage, if it is offered at a price they can afford. They can get that through their employer, through an individal plan or through a plan set up by a state or federal government. This is really no different than auto insurance requirements, except you have a hell of a lot more choice in where you can get your coverage. This judge, and this whole discussion is pretty damn dumb.

[Bill Fleming]

Well, duggerSD, at least I'm good at it.

[Miranda]

What is strange to me about this scenario is that, unless I am misunderstanding things, Congress is essentially forcing Americans to pay a tax to a third party.

If Congress wanted to be honest about the nature of what it is doing, it could simply have levied a tax on everyone and then provided insurance vouchers for citizens to use to obtain private insurance. Instead, it is effectively making citizens pay a tax to a non-governmental body.

Is that covered under the commerce clause? If so, can Congress also make us pay taxes or fees to, say, the United Nations or a foreign government? What about a foreign corporation? Can it force us to buy non-health related products? How about something like stock in Haliburton?

[Bill Fleming]

Put another way, Miranda, what Jon S and KB seem to be saying is that if the insurance premiums were being paid to the Government in the form of a tax, they wouldn't have any problem with the Constitutionality of it. They seem to be making an argument for the Public Option. Maybe even a single pay system. Medicare for everyone. If so, good for them!

[larry kurtz]

This discussion isn't the one but it is close: http://www.rapidcityjournal.com/app/blogs/politicalblog/?p=4002

There was a time when the possibility of passing a bill to fail came up.
http://www.rapidcityjournal.com/app/blogs/politicalblog/?p=3919

[Bill Fleming]

"If so, can Congress also make us pay taxes or fees to, say, the United Nations or a foreign government?" Yes. As per the interest we pay on loans from China for example.

[Miranda]

Bill: But the money we pay doesn't go directly to China, does it?

[Bill Fleming]

I don't know what you mean, Miranda. Sorry.

[Miranda]

Bill: We don't give money to the Chinese government. It doesn't collect money from us or bill us, right? We pay taxes as usual through the IRS and the government pays what we owe.

In the case of insurance, we (individual citizens) don't pay the IRS. We pay an insurance company. So what we are looking at is a tax payed to a nongovernmental agency. Is that constitutional?

[Donald Pay]

What's the problem? You pay for mandated auto insurance to a private company. You pay the insurance company for a specific product, which the government mandates in a general manner. Same thing with health insurance. Students pay private banks for government backed student loans. This happens all the time when you have a privatization of a governmental function and that company charges a fee (eg. buying fishing licenses at Walmart). You seem to be arguing against the Republican platform. If you really want big government, keep arguing against the mandate, which, by the way, was a Republican idea.

[KB]

Bill and Donald make my argument for me. I hardly need to add anything, but I will. Congress has the power to tax, and can tax me to fund social security and medicare. If Congress thinks I am eating too much fat and drinking too much sugar, it can tax pork rinds and soft drinks.

Can Congress require me to join Weight Watchers and penalize me if I don't? Bill and Donald seemed determine to convince us that they cannot see the difference. Maybe they can't. I can. If Congress can do that, the Constitution has no meaning. That is what they seem determined to prove.

Yes, Donald, Congress could have avoided the constitutional problem by extending Medicare to cover all Americans. That might have been the most viable policy. It would have required a real examination of the health care system and alternatives in other nations. But they couldn't get that, could they? The public option failed. Instead they required everyone to purchase private insurance. The failure of their preferred policy does not justify a hitherto unprecedented and unconstitutional expansion of power.

[KB]

A brief reply to Professor Schaff: money paid into social security goes either to fund current benefits or it goes into the treasury to be spent on everything else. The Social Security Trust Fund consists only of IOU's. So I think I am right on detail.

[Bill Fleming]

I don't believe that the Constitution "has no meaning," KB. I think we just disagree on the meaning it has.

[William]

BF,

Perhaps the disagreement centers on whether or not the Constitution sill LIMITS the power of the Federal government, or whether it's been interpreted as having "evolved" into something that EMPOWERS the Federal government?

I may be wrong, but your arguments seem to be based more on an emotional view of the "spirit" of the Constitution, rather than the literal text.

Certainly, precedents observed by the Supreme Court today may actually support your interpretation.

[Donald Pay]

The problem, KB, is you have pushed your argument beyond what is being proposed, and it ignores the reality of everyday life in America. Mandating health care coverage is done all the time in family courts all across this nation. A mother or a father of a divorcing couple is often required to continue coverage for their children or to purchase health coverage. Courts, in case you didn't know it, are part of the government.

I would have preferred Medicare for all, by the way.

[William]

Donald,

I suppose "Medicare for all" WOULD collapse the system soon enough we might actually be able to address the issue without the belief that "government is the answer"...

[Bill Fleming]

Exactly, Don. As is often the case, we find ourselves having to help the GOP shape their own arguments — and as a result, appear to be taking one or the other side of same — when in fact we are of a completely different mind on the subject. I too am an advocate for a single payer health care system, or at least a robust public option.

Another point worth making here is the "deliverable." Perhaps it would change the conversation a little if we thought of it less as an "insurance product" and more as "health care services." Yes? No?

[Donald Pay]

Bill,

The facts don't matter to most people on the right, or they are ignorant. "Hillary Care" was countered by the Republican's plan for mandated coverage, the very plan that passed. Now they claim their plan isn't constitutional, and that "Hillary Care" is. These people are insane.

[Bill Fleming]

Not sure I'm personally qualified to make the "insanity" value judgement, Don.

But I do think something like this may be going on:
http://cup.columbia.edu/book/978-0-231-14784-2/this-incredible-need-to-believe/excerpt