I tend to try to avoid hot-button political issues on Hit Coffee because by and large I have discovered that people on both sides of most issues bring their opinions and sets of “facts” to the table and in blogland it devolves into a screaming match of accusations and name-calling. But every now and again I do feel compelled to discuss a sub-issue of limited scope if I feel that we can avoid being dragged into intractable larger debate where everybody’s mind is closed like a liquor store on Sunday.

The hot-button issue at hand is the health care reform law passed by congress and signed by the president. While everything is not completely settled on the matter, we have the broad strokes of what it is going to look like. The sub-issue I am interested in is the insurance mandate. There are all sorts of arguments for and against such a mandate and the Constitutional legitimacy thereof, but since they mostly come down to arguments about SOCIALIST(!!!!)S and FREE-MARKET WORSHIPPER(!!!!)S and STATIST(!!!!)S and HATER(!!!!)S OF CHILDREN, I am mostly interested in two particular arguments that I find off-base.

First, the comparison made between the federal government requiring that we get insurance and the requirements of each of the states that we get automobile insurance. Proponents of the legislation argue that of course the insurance mandate is okay because we already require auto insurance. There are three distinctions, though, of differing validity. I will approach them from least to most concretely valid.

  1. There is a difference between individual states and the federal government enacting such laws. Truthfully, I find this argument uncompelling for reasons I will discuss below. However, there is at least a theoretical difference between a state government and the federal government enacting such a provision. Namely, if a state government enacts the requirement, people are free to leave the state without leaving the country. Or, if all states choose to enact a provision or requirement (as with auto insurance requirements) there is a substantive argument that the public has spoken as opposed to the blue states forcing something down the neck of the red states or vice-versa.
  2. Drivers are not required to insure against damage to their own car the same way that a health insurance mandate would require is to insure against our own bodies. No state that I have lived in has required anything more than liability insurance. Right now, my Escort is not insured if I hit a light-post or another car. My car isn’t actually insured, but rather what my car hits is insured. For it to be comparable to a health insurance mandate, the state would be required me to insure my car against damage. I don’t know of any state where that is the case, though even if it is true in some state (a) we still revert back to #1 where the more local government made that decision for itself and (b) a whole lot of people that support liability insurance requirements would not support that move. So it’s not the “gotcha!” that a lot of proponents of the individual mandate suggest.

    The counterargument to this is that an individual mandate does protect other people because the uninsured are a drag on the system because they rack up health care bills that they cannot pay and the costs are passed along to everybody else. But this is far, far more indirect than the case that can be made for required auto insurance. Taken to its logical extension, it can be used to justify federal prohibition of any behavior that is unhealthy because the government (Medicare) is going to (partially) take care of us in our old age. That’s risky terrain even for those of us that are not of a particularly libertarian bent. In other words, this hands a substantial argument to those that would call this plan statist in nature.

  3. Nobody is required to purchase auto insurance. You’re only required to purchase auto insurance if you drive. True, it’s difficult to get by in this country without driving, but people do it every day. Further, when people agree to drive they are already committing themselves to a series of expenses and we can just add auto insurance onto the cost of the car, licensing, and so on. I suppose one could make the case that living costs money, too, but I would think that as a society we would be more willing to accept people being unable to drive because they cannot afford it far more willingly than we would accept people being unable to live because they cannot afford it.

None of the above is to say that a health insurance mandate is a bad idea. In fact, despite the above I personally support it in the abstract (even if I have reservations with regard to how it was implemented in this law). On balance, though, in any system in between a state-run or completely state-subsidized health care system and a completely Darwinian system that allows people to die on the emergency room steps unable to enter because they cannot afford to be stitched up is going to be better served by inducing or coercing people into getting health insurance. Disagree with that? Fair enough. You have my views and I have mine.

The second argument I find off-base is that an individual health insurance mandate is simply not something the federal government can do. It may be true that either (a) how this particular health care plan does it runs afoul the Constitution or (b) a “proper” reading of the Constitution (ie how you would read it) does not allow for such a thing, but the courts have already given the government enough latitude to be able to practically enforce an insurance mandate by giving the federal government control over taxation the way that they have. And if the mechanism used by the current law does prove to be unconstitutional, there is a relatively easy workaround at Congress’s disposal.

Because the federal government has the ability to set the tax code, all that is needed is “fine” people by raising taxes and then to make health insurance tax-deductible (up to a particular amount or in total). Whether it was envisioned by the Founding Fathers or by those that enacted an income tax in the first place is procedurally beside the point. Right or wrong, the courts have buckled by allowing the government to use taxation as a stick and carrot to promote desired behavior and discourage undesired behavior. If they can encourage home ownership through the tax code, they can “encourage” the purchasing of health insurance.

There are some legitimate questions as to whether or not the way the precise way that they are using taxes to punish those without health insurance is constitutional, but the notion that the federal government is incapable of punishing those that do not get health insurance is not, as far as I can see, true. They punish housing renters every day.

-{I realize that by even mentioning the health care law I have potentially opened a can of worms. Let’s try to avoid broader discussions as to whether this bill is on balance a good thing or a bad thing and any comment that accuses those with differing opinions of being dishonest, unintelligent, uninformed, or of moral integrity will be clipped or deleted.}-


Category: Statehouse

About the Author

Will Truman (trumwill) is a southern transplant in the mountain east with an IT background who bides his time taking care of their daughter while his wife brings home the bacon. You will probably be relieved to know that he does not generally refer to himself in the third-person except when he's writing short bios on his web page.

7 Responses to The Mandate

  1. web says:

    Generic statement questioning the species parentage of all politicians.

    Setting that aside, my counterarguments:

    #1 – as you pointed out, driving is a privilege and not a right. It can be taken away from you, or simply not granted. The individual mandates exist in that all states require “insurance”, or in many states, you have the alternative of maintaining what they call “proof of ability to pay” instead of liability insurance. That being said, your drivers’ license, AND the law requiring you to have insurance, are both administered by your STATE for reasons of (theoretically) public safety.

    #2 – Taken to its logical extension, it can be used to justify federal prohibition of any behavior that is unhealthy because the government (Medicare) is going to (partially) take care of us in our old age. That’s risky terrain even for those of us that are not of a particularly libertarian bent. In other words, this hands a substantial argument to those that would call this plan statist in nature.

    See also:
    Lenina Huxley: [A]nything not good for you is bad, hence, illegal. Alcohol, caffeine, contact sports, meat . . .
    John Spartan: Are you sh**ing me?
    A computer: John Spartan, you are fined one credit for a violation of the verbal morality statute.
    John Spartan: What the Hell is that?
    A computer: John Spartan, you are fined one credit . . .
    Lenina Huxley: Bad language, child play, gasoline, uneducational toys, and anything spicy. Abortion is also illegal. But, then again so is pregnancy, if you don’t have a license.

    #3 – “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy.” – Are we there yet?

  2. web says:

    Also, as you pointed out: technically speaking, you have the right to simply say “fine, I won’t drive” and then not have to pay auto insurance. With the “health insurance” bullshit, you do not have the right (though if you were successful in an attempt, very little can be done to directly punish you) to stop being alive.

    Right or wrong, I feel the “health insurance mandate” is literally punishing people for being alive. Not cool.

  3. trumwill says:

    The point of this post is not really whether insurance mandates are good policy policy or not, but rather that (a) they are not comparable to auto insurance requirements and (b) they are not inherently unconstitutional so long as the government has the right to rig the tax code however it chooses.

  4. Kevin says:

    I like the idea of universal coverage, but I think the mandate is of dubious constitutionality. The federal government is limited by the Constitution and Congress is limited specifically by Article I, primarily Article I, section 8. While they do have the authority to regulate commerce between the states, forcing residents to buy health insurance is a stretch. True, they can tinker with the tax code to subsidize those who do buy, but a lot of people simply wouldn’t buy health insurance and pay the penalty, just as many people simply rent. Paying more in taxes is a far cry from jail time. While I do have many libertarian tendencies, I think health care ought to be a right paid for by tax dollars. Yes, I know this makes me a communist/fascist/liberal wacko and in agreement with Ted Kennedy, but so be it.

  5. trumwill says:

    My understanding of the law is that they are using the tax code. The “mandate” is really just a tax incentive dressed up to sound better/scarier than it is. Either you get health insurance or you pay more taxes. No jail time.

  6. ? says:

    Trumwill:

    Please tell me you realize that the problem with the individual mandate is much worse than a question about its constitutionality. The problem is that it’s a joke. At $695 (as I understand it) the penalty is insufficient to compel people to buy an insurance policy that costs ten times that. Coupled with “guaranteed issue” and “community rating”, it is guaranteed to make people not buy insurance until and unless their medical bills exceed their premiums. The insurance market thus enters a death spiral.

  7. trumwill says:

    There are a number of things about the mandate as put in this bill that one might object to. The Attorneys General, though, are suing on Constitutional grounds. And a lot of folks are supporting them in that endeavor. They criticize the mandate’s existence, not that it is too weak. Both criticisms have some degree of merit, though that’s beyond the scope of this post.

    To correct one thing, though, the $695 is a minimum. It’s either $695 or 2.5% of your income, whichever is greater.

    Regarding the pre-existing conditions, I touched on that in this post. Unfortunately, President Obama did not seek my input.

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