People don't like being told what to do by government. The states don't like being told what to do by the federal government. When this happens, there are always questions raised about whether government is exceeding its constitutional authority.
Over the last couple of centuries the power of Congress has dramatically expanded, and the Supreme Court has very infrequently ruled that Congress was overstepping its bounds. Article I, Section 8 of the Constitution enumerates the powers of Congress, and the last paragraph affords Congress fairly sweeping authority to exercise those powers through the enactment of laws which "shall be necessary and proper" to that exercise. So once the Court can find a basis for Congressional action in some enumerated power, the "necessary and proper" clause, as it was dubbed by Justice Brandeis, provides broad latitude.
But the "necessary and proper" clause doesn't give Congress the power to do whatever it wants. So much of what Congress does falls into the realm of regulating interstate commerce. Pretty much any economic activity that crosses state lines then falls under congressional power. But some are under the misapprehension that the beginning of Section 8, which empowers Congress to provide for the "general Welfare" (they capitalized a lot of common nouns back then), lets Congress do whatever it wants for the good of the country (which is, of course, in the eye of the beholder).
Not so, sayeth the Supreme Court. If you read that first paragraph, it looks that way. But the Supreme Court has said that phrase in the first clause of Article I, Section 8 means only that Congress can use its taxing authority to provide for the general welfare, not that it can do anything at all to accomplish that goal.
(My own view on this is ambivalent. On the one hand, I think limiting congressional authority is generally a good idea. On the other hand, there is a comma in that first clause that must be ignored for the view expounded by Justice Joseph Story to make sense linguistically. Recognizing, however, that commas were sprinkled generously in 18th-century writing, I'll go with Justice Story's interpretation.)
So look at the enumerated powers in Section 8 and try to find one that allows Congress to force a person to buy health insurance. Keep looking. No luck? The 11th Circuit Court of Appeals couldn't find it either. And so it disagreed with the 6th Circuit, which has upheld the "individual mandate" of the Patient Protection and Affordable Care Act (PPACA, also known as Obamacare). Remember what is likely to happen when two appeals courts within the federal judiciary issue contradictory rulings: the issue will wind up in the Supreme Court.
I hesitate to predict how the Supreme Court will settle this question, but I think the 11th Circuit is on firmer ground. Sometimes constitutional law defies practicality. By this interpretation Congress cannot tell me I must buy health insurance, but Congress can confiscate some of my earnings for the purpose of providing me with health insurance.
Why is this so important? Because for the financing of our health care system to work well, everyone must participate in the insurance risk pool. We can do that if we all buy health insurance (or at least all of us who aren't already covered by public health insurance, meaning Medicaid and Medicare). Or we can do that by paying taxes to provide public health insurance for everyone. The 11th Circuit's ruling would seem to push us in the latter direction. Many Americans don't want to go in either direction, even as they acknowledge that having 50 million of us uninsured is a bad thing.
The other major reason is the matter of "pre-existing conditions." Most of us agree that an insurance company should not be allowed to refuse to sell you health insurance because of a pre-existing condition or to exclude that condition from coverage. If we require everyone to purchase health insurance, we can tell the insurance companies they cannot exclude pre-existing conditions. Otherwise, many people will wait until they have something serious wrong with them to buy health insurance. It's like buying car insurance after you get into a crash and expecting it to be covered.
So what is the right answer? The goal is universal coverage, and the surest way to get there is to expand public insurance programs to cover everyone. Many Americans oppose that at the same time they agree we should have universal coverage. It's time to make some hard choices.
(Oh, if you're still wondering about the "states' rights" basis for opposing Obamacare, you'll have to wait for another blog entry. One constitutional issue at a time.)
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