Part 1: An unqualified rube attempts to outline the problem
In this series, I attempt to resolve, through my complete absence of legal powers, whether healthcare reform is constitutional. More reasonably, I try to lay out some arguments, inconsistencies, and reasoning. In Part 1 of a series that is probably mostly wrong (but very interesting!), I provide my very basic outline of what the problem is.
I am not a lawyer. I will never be a lawyer. In fact, barring any catastrophes, I will be the natural prey of lawyers: A doctor. But armed with only a high school background in American history, a healthy interest in current affairs, and a not insignificant possession of reasoning ability, I will attempt to weigh in on the question of healthcare unconstitutionality.
My understanding is that people consider this as an abuse of the interstate commerce clause, which allows the federal government to regulate trade between states and has been responsible for the progressive expansion of federal power. Opponents consider it an encroachment of state and individual rights.
My very sketchy understanding of the argument is that they are formulated in the following ways:
1) Forcing individuals to have health insurance is unconstitutional
2) Forcing individuals to purchase a private product is unconstitutional
3) The regulation of insurance is more or less a matter for states to decide, not the federal government
I feel most comfortable waving away #3. I think it can be demonstrated that because insurance companies operate in multiple states, there should be some federal authority to regulate how they behave. Moreover, the impacts–particularly the negative–of poorly regulated insurance companies largely accrue to the federal government in the form of increased burden on Medicaid and other federally-funded public assistance programs.
I think if #2 were disproved, #1 would become difficult to defend. In my opinion, the constitutional questions that hold some weight, subtlety, and interest, are over mandates. In the next part of this series, Arguments that are worse than mine–Bad points hurt good conclusions, I will take a look at a historical approach that has been made to resolve this issue.
Prajwal!
It’s been a long time since I’ve seen this blog, and to be honest, you’re putting me to shame. I haven’t written in my own for ages! Although to offer an excuse, my blog is generally apolitical and since policy is what i’m studying, my site is all the stuff that I don’t study (much like I don’t read a lot about protein aggregation in your blog) and I don’t know shit about science.
Nevertheless, being a right-leaning pro-single payer person, I have a hard time buying your reasoned opposition. The fact is that the recently passed health care bill is not one that even provides a public option, let alone doing away with health insurance companies altogether. as a matter of fact, there is a pretty strong structural argument in the constitution and other founding documents for a pure single payer system.
This bill however, does violate the Constitution in a couple of ways, one straight and one twisty (i know you’ll like the latter). A law that forces Americans to buy healthcare has many common traits to a law that would, say, require all Americans to buy an automobile or a cell phone plan or a nice painting. Yes, you couldanswer that unlike automobiles, paintings, and iPhones, health care can save your life. But that’s actually not the point. The question here is whether or not this law violates, according to a constitutional definition, the government’s capacity to control people’s purchasing power and freedom.
The answer, quite simply, is yes, prajwal, it does. The government is not authorized to demand its citizens to buy a commodity. As I said prior, a system in which health care is funded directly by taxes and is run by the government would have some legality, based on section 8 of article 1: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States …” While it would be an un-strict reading of our Constitution, given that the term ‘welfare’ in today’s usage was not the same as how it was used by the documents writers, both the general ‘spirit of the law’ approach by the last 30 years of supreme courts would imply that a single payer system provided by government might be constitutional.
However, the individual is protected from imposition of trade or businessby the constitution in article 1, sections 8 9 and 10 in several ways. In article IV, again, it is rejected, in fact by the inter-state commerce clause, which was actually designed to protect intra-state trade from state-imposed tariffs, currency shifts, and different valuations. By the way, that means you shouldn’t be so comfortable ‘throwing out’ allegation #3.
And let’s not even discuss amendment number 10, which denies the federal government (the “United States”) the right to pass laws regarding federal questions unless those laws are within the parameters named by the Constitution(handily listed in article 1, section 8), none of which include demanding purchase of commodities from citizenry.
finally, let’s take a look at the declaration of independence. pro-singlepayer people have often used the unalienable rights argument … lord knows i have. you know, the one where you say: ” ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ is what’s written, so life must be protected by the reasonable government.” Well here’s the thing. Life, as defined in that language, and as defined now by our government’s national interest, means the the lives, liberties, and pursuits of happiness of a state’s citizens must be protected FROM the government, by any means necessary (including another government). And by the way, let’s not forget that Jefferson lifted that from Locke’s ‘First Treatise on Government’, where the unalienable rights were life, liberty, and the pursuit of property. So looking at the intellectual ancestors, if you will, of America’s founding documents, we find that citizens’ pursuits of property (financial gains, purchasing power, economic gains of every sort) actually have to be protected FROM over-voracious government.
Anyway, I hope that I have the time in the next coming weeks to read your continuing posts about constitution and health-care. And let’s talk soon. I’m a little busy this week because of Passover, but might have some time on Friday.
Love,
Nick
By: Nick on March 30, 2010
at 1:39 am