Unless you were hiding under a rock last week - or assiduously avoiding coverage of national news - you know the U.S. Supreme Court was hearing oral arguments on the constitutionality of certain aspects of the Patient Protection and Affordable Care Act, also known as Obamacare. By the way, for those who have expressed disapproval of the use of the coined word "Obamacare" as derisive, disparaging, or pejorative, lighten up. President Obama himself has approved of its use.
While the high court heard arguments on whether these issues were even appropriately being considered (because the law hasn't taken effect yet) and whether the expansion of state-administered Medicaid programs required by the law violates states' rights, the central question that has generated the most interest is whether the individual mandate is constitutional.
Does, or does not, the U.S. Constitution confer upon Congress powers sufficiently broad to allow the national government to require all of us to buy health insurance? While there are many intellectually interesting arguments on various sides of this question, let me begin by telling you my opinion. The answer is no. Congress can confiscate my money through direct taxation and use it to pay for my health care through a federal program. Congress cannot, however, force me to buy health insurance though any powers accorded to it in the Constitution. I will go on to say that what they are allowed to do is much simpler than what they aren't allowed to do, and it would achieve the goal of universal coverage, while the individual mandate as written in PPACA will not.
I believe we need universal coverage. I also believe we don't have it because most people who have health insurance in our current system are satisfied with what they have and don't want anybody messing with it. Perhaps if they understood how easy it is to lose that coverage in an economy in which job security is a fantasy, they would favor doing whatever works to achieve universal coverage. Effective political leadership, the kind that can explain things to John Q. Citizen and mold public opinion, is what we need - and haven't had.
Now let's get back to the question. If I refuse to buy health insurance, does that affect interstate commerce? Sure. Insurance is a mechanism for pooling risk. If lots of folks who are young and healthy and use very little health care refuse to participate in the pool, the cost of participating goes up for everyone else. And when they do get sick or hurt and require health care for which they are not insured and cannot pay, the cost shifting that results from that also drives up costs for everyone else. Inasmuch as the health care market is regional, or even national, my decision has an effect on interstate commerce. But the next question is whether Congress can use its power to regulate interstate commerce to force me to engage in that commerce when I have chosen not to.
When you start looking for analogies, you run into trouble. Can we find other examples of Congress forcing people to engage in interstate commerce? Does it make any sense that Congress should force people to engage in interstate commerce for the purpose of creating commerce that it can then regulate?
Justice Scalia used the food analogy that some have offered. You can go hungry for a while, but eventually you have to eat. While it is true, they say, that a person can stay out of the health care market for a time - perhaps even a long time - it is a virtual certainty that eventually that person will require health care and will then be engaging in this commerce about which we are arguing. That inevitability allows Congress to regulate the individual's behavior in anticipation.
Scalia noted that Congress isn't just regulating the commercial transaction between the provider and consumer of health care or between the purveyor and the purchaser of health insurance. No, Congress is telling the purveyor what kind of health insurance it must offer and the purchaser what kind he must buy. So, Scalia analogizes, Congress says not only must you eat, but you must eat broccoli. Others have expanded on this argument. Not just broccoli, but a broadly healthful diet. And join a health club. Exercise at least 5 days out of 7, for at least 30 minutes per day. OK, that last part may be way beyond regulating interstate commerce, but mandating that we buy health club memberships isn't, because there are several nationally franchised companies. Just tell me this: does the fact that I have an exercise room in my house with equipment for aerobics and weight training exempt me from this requirement? (And yes, if you're wondering, I actually work out almost every day.)
Time for a deep breath. How important is the individual mandate? Well, if you want to preserve the private health insurance market, and have any hope of controlling costs, it's very important. And don't forget that really popular provision of Obamacare, the part that tells insurance companies they cannot refuse to cover pre-existing conditions. If you don't make me buy health insurance, why shouldn't I just wait to buy it until I need it - when I get sick or hurt? Because then my condition will be labeled "pre-existing" and won't be covered. After all, the reasoning goes, what I'm trying to do is like buying collision insurance after I crash my car and expecting my claim for damages to be paid.
But if the individual mandate is unconstitutional, which I believe it is ... now what?
We could come up with another, even more incredibly complex piece of legislation to cover everyone. Or we could do the simple thing and create a single payer system (like Medicare for everyone) and hope that giving the government as much control over the rest of the health care system as it has over Medicare doesn't get us into trouble. (Remember P.J. O'Rourke's clever observation: "Giving money and power to government is like giving whiskey and car keys to teenage boys.")
We need universal coverage. Every single day in my job as an emergency physician I see many regrettable consequences of people's lack of health insurance. So take my word for it. Whatever approach we pick to achieve the goal of universal coverage, we have to pick something. What we're doing now isn't working. You pick. [By "you," I mean the American people.] Once you pick something, feel free to ask me whether it will work. I've seen enough things that didn't to be an expert on what will.
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