Though it surely comes as no surprise, the United States Supreme Court has officially announced that it will hear challenges to the controversial Patient Protection and Affordable Care Act, specifically relating to the individual mandate, as filed by 26 states in conjunction.
Clearly, requiring individuals to purchase anything in support of the so-called “greater good” or public welfare is wholly outside of constitutional power possessed by the Congress, no matter how it is rationalized, so I will be shocked if the court rules otherwise – though stranger things have certainly happened where political power is concerned.
Proponents of the law have compared this mandate to the states requiring drivers to purchase liability automobile insurance but even marginal inspection reveals that these two scenarios are not created equal. Requiring insurance in exchange for the privilege to operate a vehicle on a public road does not equate to requiring individuals to purchase medical insurance for simply existing. And in any event, the healthcare mandate would be roughly equivalent to the states requiring collision insurance, which they do not, vice liability insurance which covers others’ property in the event of an at-fault incident on the part of the insured.
There are a number of reasons why this mandate is troubling in a free society. First and foremost, it clearly violates even the most liberal, no pun intended, interpretations of power granted to the federal government. Simply put, there is no provision in Article I that empowers the legislative branch of the federal government to make consumer choices on behalf of its citizens. Second, the mandate lies in contradiction to the basic premise of why government is instituted among men in the first place. From a practical perspective, if government can dictate to us what we purchase based upon subjective reasoning that such a power grants “Congress the broad deference it is due in enacting laws to address the nation’s most pressing economic problems,” how long before that same rationale is applied to require we buy a vehicle from General Motors to once again save the American auto industry or open a credit account with Bank of America to save the “too big to fail” financial institutions?
This whole approach is a clear overreach of legitimate government authority dressed up in the classic façade of government paternalism. But I fear this case may be a lose-lose scenario for individual freedom, regardless of which way the court ultimately sides. It is possible that the individual mandate was originally worked into the PPACA with the understanding that it would not pass judicial or public scrutiny. If/when this element of the legislation is struck down it might set the stage for universal application through taxation and entitlements – much like Social Security or Medicare – since the individual mandate serves as the foundational basis for the entire act from a solvency perspective.
The argument would be that since full participation is crucial to the success of the act, and mandating the purchase of private insurance is unconstitutional, then full participation should be achieved through nationalization and taxation. Such an approach is already long-established as constitutionally compatible (though erroneously so) and would usher the statists’ ultimate goal: single-payer, government managed, socialized health care. Not only is this the ultimate development to be feared from an individual freedom standpoint – nothing destroys said freedom quite like total dependence on the state for survival – but this is also the development to be feared from a practical one. Government simply cannot manage large, complex bureaucracies in a manner that outperforms or even paces the private sector. There is no example that empirically contradicts this point.
It has been correctly posited that the absence of young, healthy people in the healthcare system contributes (among many other factors) to higher premium costs for the rest of the participating populace but there are better ways to go about encouraging personal responsibility than by empowering government to violate the purposeful Constitutional limits placed upon it. One approach that would greatly reduce healthcare premiums for private consumers is to empower the free market to function as intended by eliminating Medicare and Medicaid, or at least limiting their respective eligibilities. Additionally, reforming the Emergency Medical Treatment and Active Labor Act (EMTALA) in a way that prevents the uninsured from using emergency rooms as health clinics and for routine procedures would help with costs that are ultimately deferred to the insured as well. This would also serve to encourage personal responsibility amongst those capable of taking care of themselves by removing the safety net that comes at others’ expense. The notion of tort reform was all but dismissed during the contentious debates leading up to the bill’s passage – no doubt due to the powerful malpractice industry lobby – and the idea of removing absurd and hypocritical restrictions on interstate commerce of health insurance has been largely ignored as well.
In the end, there are many practical and ethical choices to debate and decide from that do not give the Congress subjective discretion over our consumer choices. Once this personal power is surrendered it will likely never be regained and history indicates that the scope of this new power wielded by government will steadily increase.