By Scott Galupo, Thomas Jefferson Street blog
National Review Online's Stephen Spruiell has a compelling rebuttal to the Washington Post's defense of the healthcare reform law's requirement that individuals purchase a health plan. The Post wisely avoids the faulty car-insurance analogy. In its place is an expansive notion of the federal government's interest in an efficient healthcare market—a "legitimate public purpose."
For most of our nation's history, Congress has been very concerned with propping up the prices of agricultural commodities. This is a legitimate public purpose, by the Post's broad definition ... But if the individual mandate is allowed, Congress would theoretically have the power to implement the following plan: Each citizen each year must buy a basket of U.S. farm commodities—perhaps he could choose among the gold, silver, or bronze baskets—and he would receive subsidies if his income fell below a certain level.
To see how this plays out in the courts is going to be interesting, to say the least.
As a practical matter, the mandate is a critical piece of the new law. As Paul Krugman, Jonathan Chait, Steve Benen, and other supporters have pointed out, it's one of the legs of a stool: In order to get tougher on the insurance companies, you need to force healthy people into the system.
But just because something is a practical necessity doesn't mean it's constitutional—and my suspicion is that liberals haven't thought too much about the mandate in theoretical terms. They believe it's constitutional because they need it to be constitutional.
Single-payer systems, of course, pose no such quandaries. When access to medical care is defined as an intrinsic need, a basic right, no one needs to be forced to buy anything.
My personal view of those who choose not to buy health insurance when they could afford to—and subsequently consume care whose costs are absorbed by my premiums—is that they're participating in a kind of institutionalized robbery.
But this phenomenon could easily be solved by denying care to such people.
As everyone knows, that's not what happens in emergency rooms.
This fact undergirded Mitt Romney's argument for an individual mandate in Massachusetts. Or, as he put it about something that "looks like an individual mandate": "[R]emember, someone has to pay for the health care that must, by law, be provided: Either the individual pays or the taxpayers pay. A free ride on government is not libertarian."
Again: However true this may be in practice, there's still a lack of a theoretical justification to force people to buy a product in the marketplace.
The Obama administration will likely win this battle in the end.
But the path from here to there is going to be awfully slippery.
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