If The Government Can Force You To Buy Healthcare ... Ctd

A reader writes:

In my my job, I help low- and no-income patients enroll in government subsidized health care programs. The program in Minnesota that is designed for people in the "higher" low-income bracket, and also for people whose employers don't offer coverage, requires people to pay an income-based premium each month. It is amazing how many of my patients enroll in the program, get treatment, and then let their coverage lapse to avoid paying this premium. This drives up costs for all the other people on the program. Also, because the program takes three or four months to get on (a weak attempt by the state to convince people to stay on the program, rather than jumping on and off), many people fall through the cracks.

Perhaps because of this, I'm not particularly troubled by the mandate. I'm willing to make many small-but-significant concessions to control costs, as long as they result in a program that drastically increase our coverage rate, as PPACA does. And I see the mandate as a financial concern more than a "fundamental freedoms" issue. Sure, people have to either pay for coverage, or pay a penalty. But it's based on income. Low-income folks won't be paying high premiums (if they are asked to pay a premium at all).

That being said, I think there are some reasonable arguments against the mandate. And comparing such a rule with Ohio's (or Minnesota's) law that all drivers be insured is simply a false equivalency. As somebody probably has already pointed out, no state requires all residents to carry auto insurance, only that drivers and/or car owners carry it. If you don't want to pay for coverage, you have the option to not own/drive a car. There is a huge difference, when one is looking solely at personal freedom, between saying "You must pay for X, if you choose to do Y or Z" and requiring everybody to either have insurance or pay a penalty. The one is inclusive, the other exclusive. The draft analogy doesn't stand either. Only a limited percentage of the population is draft-eligible, and the draft is only adopted during specific periods of time, under specific conditions, and necessitates approval by legislators who will lose their jobs if the public thinks they've overstepped. It is not an ongoing, never-ending financial obligation for all (or a huge percentage) of the population. I'm with Reihan in thinking that this should just be called--and treated as--a tax.

I don't point this out because I don't support the mandate. I do. But sloppy comparisons and false equivalencies just weaken the case for an important piece of cost-control.

Another reader goes in a different direction:

Everyone seems to be missing the point here.  As Orin Kerr pointed out, Judge Hudson made a signficant error in his reading of the Commerce Clause when he wrote "if a person’s decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution."   As Kerr notes, "the point of the Necessary and Proper clause is that it grants Congress the power to use means outside the enumerated list of of Article I powers to achieve the ends listed in Article I" (or as Justice Marshall famously put it "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.")   

The Commerce clause is not what the government is claiming as authority for a mandate.  The Necessary and Proper Clause is.  And there is a long history and fairly well developed tests for determining what is necessary and proper.  If critics want to bemoan this perceived expansion of federal power, they need to consider the necessary and proper clause and its associated tests (rational relationship basis) used to assess the constitutionality of any federal action claiming it as a source of authority.  A good place to start would be Justice Kennedy's concurrence in the US v Comstock.  I'm not pre-judging an outcome here.  I'm just saying that there is a very clear and established frame for assessing these questions - and no one is using it.