Posted by
Dave Smith on Tuesday, November 10, 2009 2:35:20 PM
With the passage of the "ObamaCare" government health insurance plan in the House of Representatives, the debate over the proper course of health care reform continues to heat up. One of the aspects of the House plan likely to be duplicated in the Senate is seemingly the most innocuous and one that, at first blush, sounds consumer-friendly: the abolition of the so-called "pre-existing condition" terms, under which health insurance companies can deny coverage for conditions that existed prior to obtaining health insurance.
The unintended consequence of getting rid of the pre-existing condition terms is that people could then wait until they are sick before buying health insurance, knowing that they could then get coverage. To prevent this scenario, the House included an individual mandate -- each person
must purchase health insurance or face consequences. In the House bill, that consequence is a fine.
The first question that comes to mind is this: where does the federal government get authority to force anyone to purchase health insurance? The answer, of course, is "nowhere", which, of course, should end debate right there -- leaving aside the issue that, even if the government
did have Constitutional authority to force individuals to purchase health care insurance, it isn't the purpose of the government. It is not the business of politicians in Washington to decide whether or not I need a particular product or service, and certainly not the business of politicians in Washington to determine that not only must I purchase health insurance, I must purchase the types of coverage
they think I should have.
In response to the questions about the so-called "individual mandate", many have used the example of the requirement most states have for purchasing auto insurance as justification for a health insurance requirement.
President Obama himself used that analogy when asked about the penalties for those scofflaw individuals who would choose not to purchase health coverage. The analogy is a canard, for several reasons.
One problem with the example of auto insurance requirements leads astray even some more market-friendly folks: the requirement is from the states, not the federal government. As Madison writes in
Federalist 45, "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." It was the states that the Framers of our Constitution intended to handle issues that "concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State". If there were any justification for an individual health insurance requirement it would, like auto insurance, fall with the states, not the federal government. However, it is important to realize something deeper: there is no state requirement that individuals are required to purchase auto insurance as a condition of their property (the threat of fines) or freedom (the threat of jail). Rather, people are required to purchase auto insurance only as a condition for using public roads and highways, or, more precisely, for
licensed use of those products. A person wishing not to drive at all, or wishing to drive only on private property, need meet no such requirement.
Yet those advocating an individual mandate -- or opposing it on a state sovereignty basis -- seem not to realize this critical difference. Even if state governments are Constitutionally-authorized to impose mandates like insurance coverage, it is still an expansion of government intrusion to require such coverage simply as a condition of living in the state. The auto insurance analogy is not consistent to the debate. A truly analogous health insurance requirement would be one that is related to usage of state services and resources; for example, perhaps the state could say that health insurance coverage is a requirement for treatment at a state-funded hospital, or perhaps for admittance to a state-funded medical school.
But even there the analogy breaks down, as the auto insurance requirement does not extend to coverage of one's own vehicle -- so-called "collision" and "comprehensive" insurance are typically requirements of a lending agency, to protect their investment, but not of state law. State insurance requirements exist to ensure that one driver doesn't hurt or destory the life, limb, or property of other drivers without financial restitution. If I wreck my own car, it isn't the state's business -- that's my property. If I wreck someone else's, then that person deserves reimbursement. The state, in requiring liability insurance, is simply working to uphold a legitimate government function: the protection of private property.
These themes apply to federal insurance mandates as well. A federal government requirement for individuals to carry health insurance does not serve to protect liberty or property; rather, it serves to intrude upon them; directly, in the form of the government making a decision it is not authorized to make on behalf of individuals and families (and, because of the cost, authorizing a confiscation of property by a third party or by the government itself in the case of a collection of fines), and indirectly, in the implied seizure of assets and ultimately jail time for those who continue to flaunt government diktats.
The individual health insurance mandate fails on every level: it fails the Constitutional test, it fails the legitimate function of government test, it fails the individual liberty and property test. Don't be fooled that this requirement is analogous to state auto insurance requirements -- the analogy is a canard.