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Are Health Insurance Mandates Unconstitutional?
This is the intriguing question asked in a Christian Science Monitor op/ed by Loyola Law School professor Karl Manheim and Consumer Watchdog chairman Jamie Court. To wit:
The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.
The closest we come is when government imposes a condition on the grant of discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary – you don't have to drive a car or build a house. Nor do you have a constitutional right to do so....
A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine, or obtain treatment outside the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."
Requiring Person A to give money to Person B is a "taking," whether or not something of value is given in return. Let's say the state required every resident to buy milk, on the rationale that milk consumption benefits public health. That's either a constitutionally forbidden taking (of money) or a violation of due process.
These constitutional rights aren't absolute. Given a compelling enough reason, government can interfere with your person and property. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling.
We are not aware of any opt-outs for most people in the mandatory health insurance plans being discussed.
Manheim and Court suggest that a tax-financed single payer government health insurance scheme would meet constitutional muster.
Whole op/ed here.
My arguments (admittedly without any constitutional analysis) for mandatory private health insurance here.
I find it a bit ironic that an op/ed on health insurance appears in the Christian Science Monitor.
|3.31.08 @ 10:57AM|#
Mandatory health insurance would seem to run directly counter to the 1st Amendment. What if you are a faith healer and it is against your religion to seek medical care? Taking away child welfare issues, I don't see how the government can have the authority to make you pay for something that is against your religion.
|3.31.08 @ 10:58AM|#
I was thinking the same thing about the irony...
Basically, however, the argument for a mandate is because those who
think that universal health care is a good idea realize that a
single-payer government system is just simply unpopular with the
populace as a whole.
With that out of the way, though, how often does the whole minor
quibble about something being Constitutional or not faze a
Congresscritter or Presidential candidate?
MK2|3.31.08 @ 10:58AM|#
The Constitution's just another government regulation writ large telling us what we can and can't do.
|3.31.08 @ 11:01AM|#
I would think someone could make a good 13th amendment argument against mandated insurance.
Jay D|3.31.08 @ 11:02AM|#
It can require, for instance, that your child be vaccinated
before attending public school. But there is usually an opt-out,
such as private or home schooling.
That is not a true "opt-out," as someone is still required to
contribute money to a government school they aren't using.
|3.31.08 @ 11:03AM|#
"With that out of the way, though, how often does the whole
minor quibble about something being Constitutional or not faze a
Congresscritter or Presidential candidate?"
Never. But it ought to faze libertarians.
robc|3.31.08 @ 11:14AM|#
I dont see any irony. Of course Christian Scientists are going
to oppose manditory insurance. It isnt ironic when it is exactly
what you would expect.
In fact, this is the exact opposite of irony.
Elemenope|3.31.08 @ 11:19AM|#
I would think someone could make a good 13th amendment
argument against mandated insurance.
Perhaps, but I'd say the 14th amendment argument against
deprivation of property without due process is better, if only
because by buying a service you aren't *in servitude* regardless of
whether it is voluntary. Servitude implies (at least to me) some
notion of labor.
robe|3.31.08 @ 11:22AM|#
Elemenope,
I think there is a much stronger 13th amendment argument on the
income tax. The income tax is legal via the 16th, but making ME
fill it out is a 13th amendment violation. If the IRS had to fill
out everyone's forms, I bet they would be a lot simpler.
|3.31.08 @ 11:24AM|#
robc: But the op/ed authors think that tax-financed government single payer health insurance is constitutionally OK.
|3.31.08 @ 11:25AM|#
Am I not forced to purchase health insurance now? If not, is my "opt-out" to quit my job?
|3.31.08 @ 11:26AM|#
But in such cases, the "mandate" is discretionary - you don't have to drive a car or build a house. Nor do you have a constitutional right to do so....
Actually, so far as I can tell I do have such a right.
There are no powers delegated to the federal government over
housing or driving, so those powers are reserved to the people.
Since most people nowadays go on the principle that rights must be
explicitly granted by the Constitution, but powers are nebulous,
this is a losing argument, but I have such a right, even
if it's not a constitutional right.
In theory. In practice, insisting on this is a fool's game - I just
go down and get my license like everyone else. :-)
robc|3.31.08 @ 11:27AM|#
Ron,
But the op/ed authors think that tax-financed government single
payer health insurance is constitutionally OK.
THAT part might be ironic.
|3.31.08 @ 11:27AM|#
How is it "ironic" that the Christian Science Monitor would
publish an article questioning the constitutionality of forcing
people to buy health insurance? I would note the complete absence
of "irony": Christian Science opposes what health insurance pays
for.
John --
The mandate to buy health insurance does not run counter to the
First Amendment in the case of a faith-healer any more than the
mandate to pay for a war runs counter to the First Amendment in the
case of a pacifist.
The bigger problem comes when the government forces the
faith-healer to use the insurance or the pacifist to fight in the
war.
But I am not sure the First Amendment is the offended
constitutional principal. It is that, first, a Congressional
mandate on how to spend your money is ultra vires (but so are
Medicare, Medicaid and any "single-payer" scheme) , as well as a
"taking" for which you are not compensated, justly or
otherwise.
TallDave|3.31.08 @ 11:29AM|#
The closest we come is when government imposes a condition
on the grant of discretionary benefit or permit.
The solution is obvious: life will now be a privilege granted by
the state. In order to be allowed to live, you must buy health
insurance.
Elemenope|3.31.08 @ 11:39AM|#
There are no powers delegated to the federal government over
housing or driving, so those powers are reserved to the
people.
Umm...actually, reserved to the States. States have plenary
discretion to regulate commerce within their borders (including, I
would imagine, buying and selling houses and cars, and operating
them).
There is no federal driver's license, so far as I know.
robc|3.31.08 @ 11:44AM|#
Elemenope, grylliade,
so those powers are reserved to the people.
Umm...actually, reserved to the States.
Reserved to the states or the people. The constitution doesnt
distinguish, we get to fight it out on the state level.
|3.31.08 @ 11:57AM|#
"The mandate to buy health insurance does not run counter to the
First Amendment in the case of a faith-healer any more than the
mandate to pay for a war runs counter to the First Amendment in the
case of a pacifist."
Paying taxes is different than buying something. In the case of a
pacifist, the government is making him pay taxes of which some
portion of which go to the war. In this case you are forcing
someone to directly purchase something they object to on religous
grounds, no just pay into a general pool of money. What if the feds
passed a home defense law and required everyone to purchase a
handgun. That would violate pacifists' rights just as requiring to
buy insurance would violate religious rights.
Elemenope|3.31.08 @ 11:59AM|#
The constitution doesn't distinguish, we get to fight it out
on the state level.
The 10th Amendment is one of those pieces of language that sucks so
much (for clarity) I want to reach back in time who whoever wrote
it (probably Madison) and slap the shit out of him.
Honestly.
robc|3.31.08 @ 11:59AM|#
What if the feds passed a home defense law and required
everyone to purchase a handgun.
You mean like Kennesaw, GA?
robc|3.31.08 @ 12:00PM|#
Elemenope,
I dont think the 10th is unclear. They are clearly saying "Not
ours". After that, they werent making the call.
Jennifer|3.31.08 @ 12:03PM|#
In addition to the Constitutional issues, there's just the
pure-grade stupidity of saying "the problem is, people can't afford
X, so the solution is, require people to buy X regardless."
Great. And we can end homelessness by requiring all people to rent
an apartment, and end world hunger by requiring starving people to
buy themselves some food, and end unemployment by requiring
everybody to get a job.
Elemenope|3.31.08 @ 12:04PM|#
I don't think the 10th is unclear. They are clearly saying
"Not ours". After that, they weren't making the call.
That's precisely the problem. By not deciding, they left a nasty
ambiguity. The law does not tolerate flat-out ambiguities well, and
often when it's not clear who gets something in the law (especially
rights) the answer often practically becomes "neither".
And Madison knew better.
|3.31.08 @ 12:06PM|#
That is not a true "opt-out," as someone is still required
to contribute money to a government school they aren't
using.
I think you miss the author's point. They are not talking about,
nor apparently concerned with, "opt-outs" for taxpayer funded
government programs -- quite the opposite in fact, they'd rather
opt everyone in to something like that. After all, as noted, they
claim a single-payer government insurance would be not only
constitutional, but better as well.
If it isn't clear from the post, from reading the op-ed it is
obvious that the authors' concern is not at all with the
constitutionality of government powers to force health care on
everyone, but rather to head off attempts to do it through private
insurance firms instead of a single payer government run
program.
|3.31.08 @ 12:22PM|#
...the false assumption here is that the U.S. Constitution is an
effective legal constraint upon the exercise of Federal
power.
It is not.
The evidence is obvious & overwhelming since at least year
1861.
Thus, "...the intriguing question" should be -- why do 'lawyers
& consumer-advocates' foolishly assume the Constitution imposes
serious restraint on any form of Federal "mandates" (?)
|3.31.08 @ 12:23PM|#
You could probably make a similar argument about every social program. (Social security, welfare, medicare, etc.) We all have to pay into it, and might not actually end up using or reaping the benefits of it.
|3.31.08 @ 12:27PM|#
You could probably make a similar argument about every
social program.
Why, yes. Yes, you could.
|3.31.08 @ 12:56PM|#
You could probably make a similar argument about every
social program. (Social security, welfare, medicare, etc.) We all
have to pay into it, and might not actually end up using or reaping
the benefits of it.
Yes, as R.C. says, you could, except that unfortunately
isn't similar to the argument they are making. It is
almost the opposite of the argument they are making.
Thus, "...the intriguing question" should be -- why do 'lawyers
& consumer-advocates' foolishly assume the Constitution imposes
serious restraint on any form of Federal "mandates" (?)
They don't, but it is convenient to claim they do so when it helps
them to push for a taxpayer funded, government run, single-payer
insurance program.
robc|3.31.08 @ 1:07PM|#
Elemenope,
That's precisely the problem. By not deciding, they left a
nasty ambiguity.
What ambiguity? "Its not a federal problem, refer to state
constitution/laws instead" is pretty non-ambiguous. They were
creating a FEDERAL system, they werent trying to control what the
states did. The Bill or Rights is a restriction on Federal Powers,
they werent trying to divy up everything. Virginia might claim
something as a state power while New Hampshire leaves it to the
people. And thats okay.
|3.31.08 @ 1:26PM|#
Opponents of a universal healthcare system:
Why do you hate America, and poor children?
|3.31.08 @ 1:32PM|#
We need to CUT THE INSURERS OUT OF THE HEALTH CARE LOOP
I don't mind being TAXED to pay into a healthcare fund that acts as
a SINGLE PAYER for all health care costs.
INSURANCE COMPANIES SELL INSURANCE NOT HEALTHCARE
Fluffy|3.31.08 @ 1:35PM|#
You could probably make a similar argument about every
social program. (Social security, welfare, medicare, etc.) We all
have to pay into it, and might not actually end up using or reaping
the benefits of it.
Not really, because the issue here isn't that someone is being
forced to pay something.
The issue is who's receiving the money.
It's constitutionally well settled that you can be taxed, and
currently [unfortunately] judicially settled that the federal
government can spend those tax dollars on pretty much whatever it
wants.
It's not quite so well settled that you can be forced to pay an
insurance company for a product you don't want.
I think the Constitutional issue is only murky because some issues
surrounding equal protection and titles of nobility aren't very
well spelled out in the Constitution, probably because to the
founding generation the issues were too obvious to need
elucidation. We didn't establish a system that specifically avoided
titles of nobility because we wanted to avoid the vanity of the
titles themselves - we established that system to avoid having a
group of citizens who possessed tangible benefits as a result of
titles. In other words, it should be irrelevant to our concept of
equality if someone calls himself "Prince" or Duke" - it's only
relevant if there is some legal benefit that goes along with those
titles [such as special tax status, special court status, or the
right to receive some compulsory payment or service from
non-members of the noble class].
And it's pretty clear - to me, at least - that mandatory private
health insurance schemes, combined with state or federal licensing
of insurance providers, creates a situation where some level of
government is awarding a title ["licensed insurance provider"] and
creating serfs ["persons required to get insurance from licensed
insurance providers"]. This can't be anything other than a title of
nobility, and the fact that it isn't recognized as such is only due
to the limited imagination of the citizenry, and its limited
ability to apply archaic concepts to modern situations.
TallDave|3.31.08 @ 1:46PM|#
It's constitutionally well settled that you can be taxed,
and currently [unfortunately] judicially settled that the federal
government can spend those tax dollars on pretty much whatever it
wants.
Really? So they could use them to establish a state religion?
Government health care has a very bad reputation, so the socialists
are tying to get around that by going through the insurance
companies. The problem with that is it requires more
coercion.
The current system is flawed precisely because insurance companies
no longer sell "insurance" but socialized risk and reverse
annuities. Any socialist solution will make the problem
worse.
What we need to move toward is a system where patients have choices
in regards to cost. There's no substitute for the marketplace.
|3.31.08 @ 1:52PM|#
Umm...actually, reserved to the States. States have plenary discretion to regulate commerce within their borders (including, I would imagine, buying and selling houses and cars, and operating them).
Sorry, I should have been clearer. I know that the 10th doesn't
distinguish between the states and the people. I personally feel
that the restrictions placed on driving are absurd and arbitrary,
and that, given the importance of driving in 95 % of the country,
it is essentially a right. I think that driver's licenses should be
shall-issue, like concealed carry permits. Unless there's a
compelling reason for the government to prevent me from driving
(like multiple DUI's over 0.15 or somesuch) and I can pass a
driving test, that's all that's necessary. We don't require
mandatory liability insurance for firearm owners; why for car
drivers? You essentially can't hold down a job in many (if not
most) areas of the country without a car, and often the jobs you
can get without a car are the kind you don't earn enough
to get a car to get a better job. I just don't see how driving
(within the limits of respecting others' ability to drive on the
same roads) isn't a basic right*, given the configuration of modern
society.
* Note that I'm not stumping for any "buy everyone a car" program
or anything, just the basic ability to drive without interference
based on unreasonable middle-class assumptions.
|3.31.08 @ 1:52PM|#
www.resetamerica.com has some interesting information from Michael Jingozian for President including his opposition to mandatory healthcare. check it out!!!!!!!!!!!
Fluffy|3.31.08 @ 1:57PM|#
Really? So they could use them to establish a state
religion?
Right, that's why I said "pretty much".
Because once you get by a couple of obvious ones - like a state
religion, or extermination camps - the list of things the federal
government can't spend its money on is pretty damn short.
|3.31.08 @ 1:57PM|#
We need to CUT THE INSURERS OUT OF THE HEALTH CARE
LOOP
I don't mind being TAXED to pay into a healthcare fund that acts as
a SINGLE PAYER for all health care costs.
It seems to me that you can be taxed to pay into a health
care fund that acts as a single payer for all your health
care costs without forcing everyone else into the same
system. So you can cut the insurers our of your
health care loop while letting everyone else retain
whatever insurance and health care arrangements they want.
Fair enough?
|3.31.08 @ 2:08PM|#
The issue is who's receiving the money.
No, the issue is due process.
"Requiring Person A to give money to Person B is a "taking,"
whether or not something of value is given in return."
Is that not what social programs are? With a healthcare mandate,
we'd be forced to buy healthcare. We're currently forced to buy
into Social Security and other programs. There's no opt-out option
like the writer said about private or homeschooling in terms of
vaccines.
Alice Bowie|3.31.08 @ 2:14PM|#
I don't see how the government can have the authority to
make you pay for something that is against your
religion.
Oh...I can think of a few
Alice Bowie|3.31.08 @ 2:36PM|#
Question:
Opponents of a universal healthcare system:
Why do you hate America, and poor children?
Answer:
Because the Parents of poor children in America
- didn't do their homework
- didn't pay attention to the teacher in class
- didn't pray to Jesus for a better future.
As a result, the parents of poor children ended up getting jobs
as:
- Bus drivers
- Janitors
- Policemen
- Security guards
- Secretaries
- Clerks
- Factory workers
- auto mechanics
America needs poor people (especially children) so that
they can be used as examples.
Guy Montag|3.31.08 @ 3:10PM|#
Could one of you nice, wordy, writers at Reason write the same sort of thing about mandated automobile insurance? I have thought of writing about it, but can not think of how to stretch it out to magazine-length, or even MSM television length, for that matter.
robc|3.31.08 @ 3:42PM|#
Guy,
Back in the late 90s (IIRC) Liberty magazine had a good article on
mandated auto insurance and layed out alternative plans.
The one I remember was basically a you/your insurer is fully
responsible for damage to your car, regardless of how it is
damaged. If someone hits you, your insurance pays.
I guess under that scenario you could sue the person who caused the
damage (maybe only in an intentional situation?), but it would be
them you were sueing, not their insurance, because their insurance
(if they had it) would only cover their own car anyway.
In that scenario, car insurance wouldnt be mandatory because
everyone would be responsible for themselves, so you could choose
to insure or not.
|3.31.08 @ 3:48PM|#
Wouldn't mandated auto insurance fall under the "liability"
category?
Now mandated health liability insurance - that would be
innovative.
If YOU made ME sick - you pay. Interesting - I could file suit
against the sicko I flew next to last week if I contracted his
illness.
|3.31.08 @ 5:27PM|#
A "bit" ironic, maybe, but the CSMonitor is officially not religious (http://www.csmonitor.com/aboutus/about_the_monitor.html), and the contributors to wikipedia don't seem to think it is either (http://en.wikipedia.org/wiki/Christian_Science_Monitor). In any event, linking to a description of the religion does not really explain why the newspaper's publication of a health insurance op-ed is "ironic" when the newspaper's content is, in the relevant ways, undetermined by the religion.
db|3.31.08 @ 6:31PM|#
I think there is a much stronger 13th amendment argument on
the income tax. The income tax is legal via the 16th, but making ME
fill it out is a 13th amendment violation. If the IRS had to fill
out everyone's forms, I bet they would be a lot simpler.
No fan of the income tax here, but I think this is specifically why
the tax code allows one to deduct the costs of filing taxes. See?
It's free!
Jim Lippard|3.31.08 @ 11:35PM|#
There are initiative petitions circulating in Arizona to amend
the State Constitution to add:
BECAUSE ALL PEOPLE SHOULD HAVE THE RIGHT TO MAKE DECISIONS ABOUT
THEIR HEALTH CARE, NO LAW SHALL BE PASSED THAT RESTRICTS A PERSON'S
FREEDOM OF CHOICE OF PRIVATE HEALTH CARE SYSTEMS OR PRIVATE PLANS
OF ANY TYPE. NO LAW SHALL INTERFERE WITH A PERSON'S OR ENTITY'S
RIGHT TO PAY DIRECTLY FOR LAWFUL MEDICAL SERVICES, NOR SHALL ANY
LAW IMPOSE A PENALTY OR FINE, OF ANY TYPE, FOR CHOOSING TO OBTAIN
OR DECLINE HEALTH CARE COVERAGE OR FOR PARTICIPATION IN ANY
PARTICULAR HEALTH CARE SYSTEM OR PLAN.
http://www.medicalchoiceforaz.com/initiative.html
Kevin Carson|4.1.08 @ 4:28AM|#
Well, since it's not covered by any particular grant of power in
the enumeration of Article I, Section 8, it's pretty hard to make a
case that it's constitutional. Of course by the construction of
Gibbon vs. Ogden, damn near EVERYTHING is "constitutional" under
the Commerce Clause. But that reading is totally ahistorical. In
ordinary usage in the 1780s, "commerce among the several states"
referred only to the actual transfer of goods across state borders.
Not to agricultural or industrial production inside single state,
or purchase or consumption inside a single state.
In a government of enumerated and delegated powers, it's not enough
not to find an express prohibition of something. You've got the
burden of proof to show that the power was granted.
Elizabeth|4.6.08 @ 2:56AM|#
My story: work at Haggen. Insurance company takes money out of check without telling me or asking me if i wanted the insurance. never signed anything saying i wanted insurance or authorizing them to take out money. i don't want to throw away $5 a week- covered on parent's plan. They won't let me not pay the insurance. Have to quit job. How is this liberty and justice for all??!!!?
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