A good deal of fuss is being made about that provision of the Patient Protection and Affordable Care Act (also known as Obamacare) which mandates the purchase of health insurance. Many people feel that this provision is unconstitutional, and at least one federal case (Commonwealth of Virginia v. Kathleen Sebelius) found for the plaintiffs.
The legal theory in the Virginia case came down to a question of whether the provision was a tax or a penalty. The defendants presented it as a tax, but the Court was unpersuaded. The Court concluded that Congress lacked power under the Commerce Clause to compel an individual to involuntarily engage in a private commercial transaction, as stipulated by Obamacare’s “Minimum Essential Coverage Provision.”
The Court also held that the power of Congress under Article I, Section 8 is not unlimited. Nice thought, but really it’s too little, too late. If giving Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes” permits all that has already been done under the Commerce Clause, the genie has been out of the bottle for a long, long time.
Ironically, the model the Left should have used was the Social Security Act of 1935, in which a nearly universal old-age pension (an insurance product) would be financed by a payroll tax. Clearly, that is how nationalized health care is financed in every other country. However, such a straightforward move would look too much like “socialized medicine,” and the direct approach was not taken.
No one seems to care that socialized medicine—as in Medicare— has been with us since 1965. Moreover, Medicare has influenced all other aspects of how health care is delivered, regardless of who is paying for it.
The direct approach was also not taken because a myriad of details have not yet been worked out, and are left in the Act to the discretion of the Secretary of Health and Human Services. I guess the policy wonks who came up with this mess were not all that wonkish, after all.
When the Act was first approved, I was waiting for some conservative commentator with a contrarian bent to ask this question: If it’s so bad to force people to buy health insurance (Obamacare), why is it OK to force them to buy an old-age pension (Social Security)?
A corollary to this question would be: If it is OK to force people to purchase an old-age pension, why don’t they at least have their choice of vendors, as they would under the Obamacare provision? Why must it be purchased from the Federal government?
I guess the insurance industry lobbyists have a lot more stroke now, than they did in 1935.
Plus ça change, plus c’est la même chose.