Obamacare

Two More Ways in Which the Federal Health Insurance Mandate Is Not Like State Car Insurance Mandates

|

This morning Nick Gillespie noted a couple of ways in which the federal health insurance mandate that U.S. District Judge Henry Hudson rejected yesterday differs from state car insurance mandates:

1. Driving on public roads, unlike living, is a privilege to which the government may attach conditions.

2. Americans can avoid the car insurance requirement, but they can't avoid the health insurance requirement. As Northwestern University law professor Eugene Kontorovich puts it, "If you don't want to pay [for] car insurance, you can sell your car, but if you do not want to pay [for 'minimum essential coverage'], you have to kill yourself." The lack of choice in the latter situation—which means the regulated individuals literally have done nothing that qualifies as interstate commerce even under the broadest conception of it endorsed by the Supreme Court—was crucial to Hudson's decision.

Here are two other important differences between state car insurance requirements and the federal health insurance requirement:

3. State car insurance mandates require you to buy liability insurance in case you injure other people or damage their property, while the federal health insurance mandate requires you to insure yourself against the costs associated with your own injury or disease.

4. Car insurance mandates are imposed by states, whose powers, unlike the federal government's, are not limited to those specifically enumerated in the U.S. Constitution. Although states' powers are restricted by their own constitutions and by some provisions of the U.S. Constitution (most of the guarantees in the Bill of Rights, for example), it makes no sense to talk about the limits of a state's authority to regulate interstate commerce.

That last point is pretty important in assessing a decision like Hudson's, which applies the U.S. Constitution's Commerce Clause to the federal government. But it is routinely overlooked by ObamaCare's defenders (including the president), whose car insurance analogy assumes that the states and the federal government are bound by the same rules.

NEXT: Assange's Extremist Employees

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. And here I, a libertarian, thought that they were bound by the same rules.

  2. 5. People who don’t own cars don’t have to buy car insurance.

    1. People who don’t own cars don’t have to buy car insurance… yet.

  3. Jacob: While I agree with this line of thought overall, the big claim the Obama administration is making now on this thread is that the individual mandate is necessary because the uninsured drive up costs for the insured when they do get sick.

    There was a productive discussion on this point in a prior thread today, but I feel like this point is entirely germane to the current discussion and really bears discussion (and rebuttal) on its own. Namely, supporters of the mandate are trying to imply that requiring healthcare without prior coverage imposes a liability on the public at large – and hence are trying to tie it more narrowly to the idea of liability coverage for automobiles.

    In other words, living is a potential liability to the public treasury (according to this argument). Never mind the reason for that liability is because the public purse picks up the cost when you fail to obtain insurance in the first place.

    Basically, we need to be willing and prepared to confront this argument head-on, as it’s clear this is the new tack they’ll be taking to defend this component of the law.

    Of note, this also has a potentially interesting parallel to excise taxes, where the argument is also about the “costs” imposed upon society by the consumption of alcohol, tobacco, and the wrong kinds of foods. Just food for thought.

    1. the individual mandate is necessary because the uninsured drive up costs for the insured when they do get sick.

      What they don’t tell you is that Auto insurance companies most certainly do charge extra or even deny coverage flat out due to pre-existing conditions.

      The auto insurance analogy is wrong on so many levels that it’s depressing that our US ATTORNEY GENERAL is the one making this argument.

      Pathetic.

    2. You’re arguing as if subsidizing health insurance or expanding Medicaid isn’t a cost imposed upon others.

      1. No, I’m saying that this is the argument being made. I’m not endorsing it, I’m saying that we need to be addressing it square-on before it gains any further traction.

        1. Well, right. And the obvious response is that ObamaCare costs a shit lot more than the amount the uninsured cost us indirectly.

          According to a 2004 study (by healthcare reform advocates), the uninsured cost the system $40 billion a year in uncompensated care. But ObamaCare promises to cost at least $100 billion a year, and that’s including cuts to medicare which won’t happen.

          Why are we spending $100 billion to solve a $40 billion problem?

          1. 2 words:

            Gub Mint

          2. Hey, we got people (contributors) to take care of.

    3. And the response to Obamabots should be, always and everywhere, “No. Socializing the medical expenses of the uninsured drives up costs for the insured. If we stop subsidizing deadbeats costs will come down.”

    4. No, the real liability that backers of ObamaCare are worried about is that healthy people will choose to remain uninsured, thus driving up premiums for the relatively less healthy people remaining in the insured pool.

  4. To rebut:

    1. driving is not a privilege, but a right; i.e. roads exist, and you are therefore entitled to your share of their use. Thus, the proposed ‘choice’ to forego purchasing auto insurance is tantamount to the ‘choice’ of being denied your rights.

    2. Travel is prerequisite to the ability even to feed oneself; i.e. I need roads, and so again, I am entitled to my share of their use. Thus, the thrust of point 1 applies here also.

    3. If you get sick and are taken to the hospital, you are forcing others to work to pay for what you use. Therefore, health care insurance is liability insurance, which you are forced to carry not primarily to protect you (you will recieve care regardless), but to protect others from your potential failure to carry it.

    4. One state does not have the ability to regulate economic activity (or inactivity) between any two other states. The federal government is the only available party who can, and therefore should, do so.

    1. If you get sick and are taken to the hospital, you are forcing others to work to pay for what you use.

      If you get subisidized health insurance or Medicaid, you are forcing other to pay for your health insurance or medicaid.

      1. Indeed, Hazel, it’s not hard to turn this argument against those that are making it: If having to pay for someone else’s health care is so objectionable to them, why aren’t they demanding an end to Medicare, Medicaid, SCHIP, etc?

    2. 1. If you fail the driving test, are you being denied your “right” to drive?

      2. Did you mean to say “…driving is prerequisite to…”? I didn’t think anybody was arguing points on traveling. Even so this point is not true.

      3. You force others to work if you have an emergency and afterward you will be presented a bill (as I once was).

      4. When you buy a policy from an insurance company within your state of residence, how are two different states involved?

    3. One state France does not have the ability to regulate economic activity (or inactivity) between any two other states Germany and Italy. The federal government Agency X is the only available party who can, and therefore should, do so.

      What is Agency X, and how is it that the citizens of Germany, France, and Italy manage to engage in commerce with one another if Agency X doesn’t exist?

    4. Not that this is worth a serious reply, but:

      1. You’re entitled to drive on the road if you can follow the rules. You’ll need to have a car that meets certain safety requirements too. It’s possible to make use of roads without driving yourself, you know. And on most roads you can legally use a bicycle without having insurance or a license.

      2. See above. If you can’t drive, you can still make use of the roads through many other means. Get someone else to drive you if it has to be by car. Also, I hear tales of great congregations of people living closely together in places where driving is not necessary to obtain the necessities of life. It sounds horrifying to me, but apparently it’s pretty popular. You should give it a try.

      3. This isn’t about emergencies. Never has been. It’s mostly about people who have expensive chronic conditions but don’t want to pay for the costs of dealing with those conditions or make choices that would mitigate those conditions. The government’s solution is to make the healthy pay for the costs and then constantly nanny everyone about their life choices; in other words, to treat everyone like children.

      4. Massachusetts successfully imposed a mandate at the state level. How did that work?

  5. Why do we bother to even have these constitutional arguments anymore? As if it actually mattered

    We havent actually listened to the thing for at least 80 years now. For all practical purposes we live under a system of posativism without a constitution. The judicial branch is nothing more than another legislative body with the power to veto policy it does not approve of.

    1. The Supreme Court has always had the power to decide what is constitutional and what is not. This isn’t anything new.

      1. No. The writers of the constitution decide what is constitutional. The Supremes just rule on it in specific cases. They have no power to decide differently than what the document says.

        1. If they do rule differently than what the document says (according to you), who do you appeal to?

          [crickets chirping]

          If they are the final deciders of what the Constitutuion says, then they can use whatever logic they want to to determine such. This has always been the case.

          You could argue that they are doing their job incorrectly, but as a practical matter, they get to decide.

      2. The current legal frame work has little relation to what the constitution actually says and for at least 80 years now, justices have twisted interpretations in order to arrive at the the end policy position that various judges desire.

        Congress doesnt consider the constitution when it makes laws and neither do many voters. For all practical purposes, forgetting the bill of rights for a moment, the power of the federal government is essentially limitless and is only subject to the majoritarian will of voters. Such as system is so clearly in contrast with the purpose of the constitution.

      3. Actually, the Supreme Court assumed this power for itself.

  6. I think the winning legal argument for the Obama administration requires taking a political hit; that is, calling the requirement a tax on those who don’t have insurance as opposed to a fine.

    The government certainly can give a tax break to people who perform a certain act (for instance, buying a house last year got you eight grand). They can also tax everybody equally. So, logically, they can raise taxes on everybody and then give an equal tax break on people who buy insurance, which amounts the same as just taxing those who don’t buy insurance.

    There might be a problem with the wording of the health care bill, which doesn’t call it a tax, but it again amounts to the same thing, so that argument seems weak.

    Ultimately, the Supreme Court will have to decide this, and I’ve given up trying to predict what they will do except in cases where legal precedence is obvious.

    1. They tried that argument, it was shot down in same decision.

      1. Hasn’t there been many other decisions that ruled the opposite way? This conflinct will need to be decided by The Supremes.

  7. No hat tip for #4? I kept bringing it up on the other threads?

    1. Maybe they didn’t actually see it. It’s pretty obvious; I started frothing at the mouth about this as soon as I saw the car insurance analogy mooted.

  8. driving is not a privilege, but a right; i.e. roads exist, and you are therefore entitled to your share of their use.

    Driving a motor vehicle is not a right, although travel is.*

    If you get sick and are taken to the hospital, you are forcing others to work to pay for what you use.

    No, the government is forcing hospitals to care for all comers to their emergency rooms.

    *I get queasy, I admit, when the argument is that the government can infringe this mode of exercising your rights because you have alternatives.

    1. Re: R C Dean,

      No, the government is forcing hospitals to care for all comers to their emergency rooms.

      This is exactly the point many statist fucks seem to conveniently forget – that the cost of healthcare is driven up by goody-2-shoe government mandates, such as making hospitals serve a customer, as if costs didn’t matter right there.

    2. And many of those comers absolutely do not need emergency room care, and could be turned away with no danger to life or limb. Another point missed by the Obamacare boosters.

  9. 1. Driving on public roads, unlike living, is a privilege to which the government may attach conditions.

    And one can drive a car inside one’s property (if it’s large enough) without having to even register the car. Not so with the HC mandate: You would have to buy it regardless if you save money to pay your doctor yourself.

  10. Point #1 is not correct, despite what the gov’t wants you to think. Their argument seems to be that you have a right to travel, but every form of travel is a privilege that can only be enjoyed as permitted by the state.

  11. All that matters is point #4, and that is enough. It’s unconstitutional because the constitution does not give the Federal Government power to do it.

    In points 1 – 3, Sullum is completely ignoring the existence of EMTALA, which forces the hospital to treat you if you show up in the emergency room whether or not you can pay. Whether EMTALA should also be ruled unconstitutional is the 800 pound gorilla that all conservatives seem to ignore. If you can’t force me to get health insurance, but I can force you to treat me….

    1. Exactly. EMTALA, or at least that provision of it, needs to be repealed.

  12. If you kill yourself to avoid the mandate, the government gets the estate taxes, so that’s a win-win from their perspective…

  13. “If you don’t want to pay [for] car insurance, you can sell your car, but if you do not want to pay [for ‘minimum essential coverage’], you have to kill yourself.”

    Or you could move to Somalia.

    1. Or you could shut the fuck up, Misto.

  14. But it’s perfectly constitutional for the government to offer everyone free health care and then tax the shit out of us to pay for it. We’ll get there, one way or another.

  15. 1. Driving on public roads, unlike living, is a privilege to which the government may attach conditions.

    Hahahahahahahahaha!

  16. Too bad we don’t have a president who is a constitutional law professor…wait, never mind.

  17. That’s partially because even the libertarians have pushed FOR limiting the state governments using federal laws. Anytime they thought a state was violating people’s rights (and they usually were), they wanted the federal government to overrule them. Now, they want to claim state’s rights to prevent a federal law from taking effect. I agree with the “more freedom” angle, but if we grant the federal government increased power over the states one year in some issue, we really don’t have alot of ground in trying to argue the exact opposite the next year. The only consistent argument is “freedom”, but the very reason we HAVE federalism, checks and balances, and all that, is because governments tend to ignore our rights and take our freedom. We’ve helped break up that bulwark, and now we cry over it.

  18. Whether EMTALA should also be ruled unconstitutional is the 800 pound gorilla that all conservatives seem to ignore. If you can’t force me to get health insurance, but I can force you to treat me….

    Now we are having a real discussion on this issue. Solve this one in a way that doesn’t leave granny to die in the waiting room because she’s broke and you will have everyone on your side.

    1. I don’t see what’s wrong with the present arrangement. Granny gets treated, the hospital bills her, she pays whatever she can and her kids help out. The rest is shifted to patients who can afford it at the hospital’s discretion.

      Why is this inferior to requiring CIGNA to sign her up after she arrives at the emergency room, forcing her 25 year old grandson to buy a comprehensive health insurance plan to compensate them, and then paying for her insurance premiums out of tax dollars?

  19. And many of those comers absolutely do not need emergency room care, and could be turned away with no danger to life or limb.

    You’ve identified the problem…what’s the solution?

    1. Allow hospitals to determine their own policies.

      Is that so fucking hard to understand that you really had to ask?

Please to post comments

Comments are closed.