Friday, January 01, 2010

Constitutional questions regarding the Senate health care reform bill

Look, I'm as progressive as they come. I want national health insurance as much as anyone. But it seems to me that the Senate health care reform bill, as it currently stands, may be unconstitutional.

As I understand it:

The Constitution gives Congress the power to tax.

The Constitution gives Congress the power to provide services with said tax money.

But the Constitution does NOT give Congress the power to require that I purchase a product or service from a private corporation as a condition of citizenship.

Let me give an example that might illustrate what I'm talking about:

Suppose that the best scientific research had shown that running makes people healthier (it does).

And suppose that New Balance Shoes was the last American shoemaker remaining and that it had fallen on hard times (it is and it has).

Now suppose that in order to save New Balance Shoe Corporation, Congress passed a law saying that all American citizens must purchase a pair of New Balance Shoes every year or face a penalty. That would clearly be unconstitutional, correct?

Isn't that what the Senate health care reform bill actually does? Absent a public option or Medicare for All, the Senate health care bill doesn't provide services. Rather it mandates that every American must buy a service from a private corporation as a condition of citizenship. I don't see how that passes Constitutional muster.

Now of course the obvious reply is to point to car insurance. Every state requires that those who own a car have valid car insurance from a private corporation. And it seems to work out fine for everyone (with some grumbling and subsequent reforms in the system from time to time). But the important difference between health insurance and car insurance is that car insurance is a condition of owning a car -- not citizenship. I can always opt out of car insurance by taking the bus or walking or riding my bike or staying home.

I imagine the other potential variation of disagreement might be to argue that Congress subcontracts with private corporations to provide services all the time -- so what's so different about providing health insurance through a private subcontractor? The difference as I see it is that in the case of using a private corporation to build a road for example -- the private corporation is always the SUBcontractor. Even in that case, the ultimate responsibility for the work still resides with the government who is paying for the product or service. But that's not how the Senate health care bill works, does it? The Senate health care bill says I must purchase a service from a private corporation (which is then free to pocket 30% of that money as profit). Government may provide a subsidy to me to help me to buy that private service, but the contractual relationship is between me and the private insurer, not me and the government.

The rules for citizenship are pretty clearly laid out in the Constitution. And if Congress wants to amend the rules for citizenship to require private health insurance as a condition of citizenship, that's fine, but they would have to amend the Constitution in order to do it.

If Congress provided a universal public option or Medicare for All, then all of these Constitutional questions go away. But in the absence of a universal public option or Medicare for All, I don't see how the Senate health care bill is Constitutional.

(Hat tip to emptywheel at FDL for providing the inspiration for this post.)

Update #1: Well knock me over with a feather! Senator Orrin Hatch (R-UT) has an editorial in the Wall Street Journal that argues that the individual mandate is unconstitutional. Of course Senator Hatch is making the argument in the attempt to block any expansion of coverage. By contrast, I'm saying that the individual (private health insurance) mandate is unconstitutional and THEREFORE the only way to constitutionally expand coverage is through a universal government run plan like Medicare for All (see the comment below from "Bob the Health and Health Care Advocate" along these lines). I gotta admit, I'm extremely uncomfortable making a argument that is similar to the one made by Orrin Hatch -- because that dude is wrong about almost everything.

mcjoan over at DailyKos cites Jack Balkin who slaps down the unconstitutionality argument. He writes:

The individual mandate is structured as a tax. And the tax is perfectly constitutional under Congress's powers to tax and spend for the general welfare.

That doesn't seem very reassuring to me. If indeed the individual mandate is structured as a tax then it would seem that Congress is authorizing the IRS to collect taxes from citizens on behalf of a private corporation -- which raises even more constitutional questions. On the other hand, it really is the perfect metaphor for the sorry state of the U.S. Congress at this point -- a public body working on behalf of the interests of its corporate bosses.

Said differently, Congress could create a mandate whereby all citizens are required to buy Miley Cyrus CDs. And presumably Congress could "structure that as a tax." But I don't see how that would be constitutional. Same problem with private health insurance. Congress doesn't decide what is or is not constitutional, the courts decide that.

Update #2: Many commentators have credited President Obama with practicing "the art of the possible." The notion is that President Obama figures out the limits of what Congress can hope to pass and never asks for anything beyond those limits. Never mind that "the art of the possible" is the exact opposite of what candidate Obama ran on. What "the art of the possible" argument overlooks is that what is possible to get through Congress may not be possible on the ground as policy.

Here's the thing:

Lots of people hate the U.S. Postal Service -- and yet the U.S. Postal Service is amazing! The U.S. Postal Service will deliver a letter door-to-door anywhere in the U.S. in about three days for less than the cost of a tip at Starbucks or chump change thrown in the case of a street musician. And yet many people rail against the USPS, incensed by the high cost of a 43 cent stamp!!!

Now imagine if instead of a 43 CENT stamp and wonderful service, if the Congress sends the IRS to collect THOUSANDS OF DOLLARS from citizens on behalf of Aetna -- even though Aetna is still allowed to deny claims and cap lifetime payments.

Good luck with that.

Many commentators (and policymakers too) have been so busy trying to read the mind of Joe Lieberman to figure out what he would tolerate, that it seems that they never bothered to ask what the average citizen would be willing to tolerate.

1 comment:

Bob Haiducek (hi' da sek) , Bob the Health and Health Care Advocate said...

You've written an outstanding post about mandated health insurance.

However, with all due respect, nobody in the U.S. Congress is working on providing national health insurance, and President Obama isn't either. What they are developing would make things much, much worse. National health insurance was implemented in every free-market high-income country between the 1800's and the mid-1970's. But the U.S. has failed many times to do so, and it is not working on it now.

The planned legislation will have both our health care premiums and our taxes go way up ... all in the name of a futile attempt to cover more Americans, but in fact will end up leaving what they estimate to be at least 15 million people. (There are varying estimates between 17 and 37 million expected to still be uninsured.)

One of several things that is going to be shocking Americans as they learn more is that no citizen in other free-market countries ever has a major medical bill. We need that too ... read on.

The best version of national health insurance is single-payer, Medicare for All. If you want to know what it is ... or more about what it is, how it compares to the Congress plan, and how to help get it, go to the
Medicare for All website.

- Bob the Health and Health Care Advocate