Tuesday, December 14, 2010

Is health care reform unconstitutional?

I have a few questions for Judge Henry E. Hudson, of Virginia, who issued an opinion yesterday holding that the individual mandate in the health care reform act is unconstitutional.  First, Judge Hudson, since a couple of other district courts have already come out the other way on this issue, and it will ultimately have to be determined at the appellate level, I guess you realize you don't have the final word on this topic.  So you must know that if your opinion is going to hold up, it has to be really powerful and compelling.  Why, then, would you produce the kind of opinion that mostly consists of a summary of the parties' respective arguments, the kind of stuff that a law clerk can churn out?  (I know, since I was once a law clerk for a federal district judge.)  Then when you get to the part where you need strong analysis, and you need to have an answer to all of the compelling arguments against your position, your opinion is almost empty of analysis.

By the time we get to your conclusion, at around page 24 of your opinion, that the individual mandate is unconstitutional, all we find is the bare statement that compelling individuals to purchase a product in the private market is unprecedented and therefore violates the Commerce Clause.  I have to question how unprecedented that kind of compulsion really is.  It seems to me that every day some federal government regulation is causing individuals to pay for products they might not want.  For example, even if I don't want to pay for the seatbelts in my car, the federal government still says I have to buy them.  Even if I don't want my meat inspected or drugs tested, the federal government says I have to absorb the cost of those inspections and tests.  I suppose I could opt out of all those required costs by becoming a vegetarian who never drives or takes pills, but I would still probably find something, as I walk to the vegetable stand, that costs more because of federal regulation.  So why can't the federal government say that if I choose not to buy health insurance, I will have to pay a bit more in taxes to subsidize the cost of medical care for others, and for myself when I get sick? 

In your footnote (no. 7) to your conclusion that well, they just can't, you seem to recognize that there is a very big issue lurking under the surface, but you never really come to grips with that issue.  The text of that footnote reads in its entirety: "The collective effect of an aggregate of such activity still falls short of the constitutional mark."  I would really like to know why, but you don't explain.  If Congress has the authority to tell insurers, for example, that they can't turn a person down just because they have a pre-existing condition, an authority you don't seem to question, doesn't Congress have a responsibility to deal with the foreseeable consequences of that kind of regulation?   And those consequences, as has been shown repeatedly from experience, include the collapse of the insurance market when people in the aggregate find out that they don't need to buy health insurance until they get sick.  Imagine what would happen, for example, if you could wait until your house burned down before purchasing fire insurance.   Nobody would buy it, but then nobody would be able to afford it when they needed it.   Unless you allow insurers to turn down sick people, the way we allow fire insurers to turn down applicants whose houses have already burned down, you need either a tax or a mandate, so that enough healthy people are paying into the system to provide affordable care for anyone who gets sick, which is most all of us, eventually.  The health insurance reform act actually contains a combination of the two devices, meaning that it does not really require anyone to buy a product in the private market (contrary to your characterization), but it does penalize you (or tax you) if you fail to buy such a product.  The question you have failed to answer is why the Commerce Clause prevents the federal government from solving an obvious problem, in  any of the only possible ways that that problem could be solved--a problem that clearly arises from an aggregation of economic activity caused by the government's permissible power to tell insurance companies that they may not refuse coverage based on pre-existing conditions.  

If your opinion should hold up, Judge Hudson, then what?  It might be like the Roosevelt Supreme Court striking down New Deal legislation based on outmoded interpretations of the Commerce Clause similar to the one you are applying.  We would have to wait until enough conservative justices die or retire before we could enact a solution to this pressing problem.  Or you might just force Congress to say, fine, if we can't provide affordable health insurance to all by enacting an individual mandate or tax, then we'll just have to fund the whole system out of payroll taxes the way we fund Medicare and Medicaid, and then we might finally get to the kind of universal health care system that every other advanced nation has, except for the United States, by an even more direct route.

(AP photo from Washington Post)

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