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Is it Unconstitutional to Mandate Health Insurance?

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Is it unconstitutional to mandate health insurance? It seems unprecedented to require citizens to purchase insurance simply because they live in the U.S. (rather than as a condition of driving a car or owning a business, for instance). Therefore, several credentialed, conservative lawyers think that compulsory health insurance is unconstitutional. See here and here and here. Their reasoning is unconvincing and deeply flawed. Since I’m writing in part for a non-legal audience, I’ll start with some basics and provide a lay explanation. (Go here for a fuller account).

Constitutional attacks fall into two basic categories: (1) lack of federal power (Congress simply lacks any power to do this under the main body of the Constitution); and (2) violation of individual rights protected by the “Bill of Rights.” Considering (1), Congress has ample power and precedent through the Constitution’s “Commerce Clause” to regulate just about any aspect of the national economy. Health insurance is quintessentially an economic good. The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation. When Congressional power exists, nothing in law says that stronger actions are less supported than weaker ones.

An insurance mandate would be enforced through income tax laws, so even if a simple mandate were not a valid “regulation,” it still could fall easily within Congress’s plenary power to tax or not tax income. For instance, anyone purchasing insurance could be given an income tax credit, and those not purchasing could be assessed an income tax penalty. The only possible constitutional restriction is an archaic provision saying that if Congress imposes anything that amounts to a “head tax” or “poll tax” (that is, taxing people simply as people rather than taxing their income), then it must do so uniformly (that is, the same amount per person). This technical restriction is easily avoided by using income tax laws. Purists complain that taxes should be proportional to actual income and should not be used mainly to regulate economic behavior, but our tax code, for better or worse, is riddled with such regulatory provisions and so they are clearly constitutional.

Arguments about federal authority deal mainly with states’ rights and sovereign power, but the real basis for opposition is motivated more by sentiments about individual rights – the notion that government should not use its recognized authority to tell people how to spend their money. This notion of economic liberty had much greater traction in a prior era, but it has little basis in modern constitutional law. Eighty years ago, the Supreme Court used the concept of “substantive due process” to protect individual economic liberties, but the Court has thoroughly and repeatedly repudiated this body of law since the 1930s. Today, even Justice Scalia regards substantive due process as an “oxymoron.”

Under both liberal and conservative jurisprudence, the Constitution protects individual autonomy strongly only when “fundamental rights” are involved. There may be fundamental rights to decide about medical treatments, but having insurance does not require anyone to undergo treatment. It only requires them to have a means to pay for any treatment they might choose to receive. The liberty in question is purely economic and has none of the strong elements of personal or bodily integrity that invoke Constitutional protection. In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.

If Constitutional concerns still remain, the simplest fix (ironically) would be simply to enact social insurance (as we currently do for Medicare and social security retirement) but allow people to opt out if they purchase private insurance. Politically, of course, this is not in the cards, but the fact that social insurance faces none of the alleged Constitutional infirmities of mandating private insurance points to this basic realization: Congress is on solid Constitutional ground in expanding health insurance coverage in essentially any fashion that is politically and socially feasible.

Mark A. Hall, J.D., is the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law. He is one of the nation’s leading scholars in the areas of health care law and policy and medical and bioethics and a frequent contributor to Health Reform Watch. The author or editor of fifteen books, including Making Medical Spending Decisions (Oxford University Press), and Health Care Law and Ethics (Aspen), he is currently engaged in research in the areas of consumer-driven health care, doctor/patient trust, insurance regulation, and genetics. He has published scholarship in the law reviews at Berkeley, Chicago, Duke, Michigan, Pennsylvania, and Stanford, and his articles have been reprinted in a dozen casebooks and anthologies.

Professor Hall also teaches in the MBA program at the Babcock School and is on the research faculty at Wake Forest’s Medical School. He regularly consults with government officials, foundations and think tanks about health care public policy issues, and was recently awarded the American Society of Law, Medicine and Ethics distinguished teaching award.

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  1. I found this article very up-to-date and informative as it provides excellent tips to obtain the best possible long term care insurance rates and quotes. With this handy information, you are able to make your decisions more wisely and obtain the best long-term care insurance plan for yourself. It highlights the importance of having long term care insurance especially for the people above 65 years of age in helping them to plan for their long-term care needs.

  2. Hmmm… You’re arguing the Constitution as a positive rights document designed to promote government as the provider, as opposed to it being a negative rights document designed to limit government’s influence over the people. This is the standard liberal/conservative divide with your promoting the liberal side.
    Regardless, you’re parsing words between “regulate” and “mandate” when it comes to the Commerce Clause (as well as the the General Welfare clause, if you want to advance that notion also). Both words have distinctly different meanings are should not be used interchangeably – that’s silly and dangerous.
    At day’s end, the government IS mandating that EVERY citizen (not just INCOME-EARNING citizens as your income tax analogy fails to distinguish) purchase health insurance. This is BIG – and I suspect un-Constitutional.
    Little Billy, at eight years old, must now purchase health insurance because it’s in America’s best interest. Granted, it’s his legal guardian’s responsibility to procure it for him but no other law or regulation has EVER manadated that EVERY citizen PURCHASE a product or item because it aligns with either the Commerce or General Welfare Clauses of the Constitution. Not even the federal income tax mandates that EVERY citizen pay taxes; it’s only for those that have taxable income.
    Admittedly, the healthcare reform law’s requirement in this intrusive respect is unprecedented and should be contested on these grounds alone. The fact that the healthcare reform law is fatally flawed and actually threatens the Commerce Clause is just the icing on the cake.

  3. “The only possible objection is that mandating its purchase is not the same as “regulating” its purchase, but a mandate is just a stronger form of regulation.”
    If this were true, then Mr Hall must believe that Congress has the power to order every American to buy 5 lbs of hamburger each month because it has the power to regulate the beef industry. What a bunch of bull!

  4. Some say that this Bill to Law is built inside the concept of Social Grace. This two word phrase Social Grace, was used with the building block and design of the Titanic. There was only enough Life Boats to save the rich and famous and the poor was left to die and this included the poor children.
    I am working as hard as I can to see all the Moral Value within this Bill. And I was right this Package of the Union of the Health Care Industry is a $100 Trillion Dollars per year system. The progressive tax forum is spread out over a 3 to ten year tax concept, in order to not over tax this system. Now this may work but the evidence of the basic failed tax system is still in failure and I noted this over 7 years ago and I do not understand why Government intervention did not take place to prevent the issue we face today. Then one day it came to me like a magical dream. With all this Social Grace within our Government Personal they did not have a clue how to fix this failed system with out taxing the Health Care Programs.
    My myself I am impressed with the culture shared with the world between Democrats and Republicans, that the forgoing conclusion it to bring about diversity within the Public and bring harm to the Obama Family. Our Government officials have become a Public embarrassment and for most you no longer need to hold that seat of office. I ask this again, Is this what caused the murder of J.F.K ? Is the public really wanting to see the death of Obama our harm to his family over lies ? You see it would not matter if it was the Republicans that hold Office, so understand this, it is the voice of the People the Guide the destiny of this Country, it is only Officials that have lost the way.
    As for theses Public Officials Of Government, what are they willing to put in to help balance the failed system ? A 10% per cent roll back in their pay is in order to adjust this economy, for every City, State and Federal Official.. And please do not make me share the constant failures by Officials.
    As for this not being able to balance the budget not for another ten years, what if I told you it could be done in 3 years with a surplus of $1.2 Trillion dollars in Our Peoples Government Account. Hey there is a lot of smart people that are not of this Social Grace.
    One thing, it is allowed by Law for Government to build jobs that profit for the Peoples Government Bank Account, { Our Bank Account within Our Government } as long as Government Officials do not profit off of this Job Conclusion of Concepts.
    Because I am dyslectic I am miss under stood when I write. And it took me over a hour to write this with the help of A.I.. I do not know if Officials used any or part of what I shared but this hate threats is not the way to bring a proper reform to Health Care or into the lost ways of { Government way of thinking. } So join us and share good ideas to help build a forum that will help every body. Just leave a great blog statement.
    As I read more of this Health Care Bill 101 I noted it was based on the same concepts as what I offered to the Obama Administration over 7 months ago , but something was left out { because none of these issues released by Officials see into the economic condition at the home. Do not for get why we are in a economic break down of our system. This would be cool if what was offered was used, but hey Guys you left out something …..
    A short re- cap, At average for people with Medicare Insurance, from what I have read is some people pay up to $500.00 per month, if insurance companies are forced to cover preexisting conditions at a rate that may increase coverage up to twice its yearly average on a scale that may effect other people coverages in order to maintain a dollar balance? And for the second time, but none of these issues see into the economic condition at the home !
    FASC Concepts of a Economic Adjustment.
    We have got a lot of people who wish to know more about the function of the Federal Act Security Card. The FASC Card is merged with a Health Care Forum for the Poor and the Sick and people who have been impacted by the crash of our system. When we offered to the Obama Administration the concept of a 10% on a yearly income for Health Care Reform , our build blocks was to help the economic effected People Of The United States.
    A incentive program that states if you join the FASC and pay in for a certain amount of time you build a capital of a $10,000.00 dollars as a nest egg for you children after you pass away. Also if you pay in for 20 to 40 years and do not use the extra funds paid in the total savings oh, lets say $25,000.00 + the $10,000.00 goes to your family. The $10 thousand can never be touched by illness or Health Care issues, it is a secured amount for investing into a Concept of Country.
    As for the concept of the Patriot Act, to protect the Health Care dollars, a guide line of law to bring about a delay of fund being transferred out of this country , in order to give time for Government approval for the transfer of millions of dollar. And to make it a Capital Offense…….
    The basic blue print for security of this FASC Card is a 3 part potion, as follows /
     part a: Windows : a pin number /
     part b: BIOS a Social Security number and /
     part c : MS Dos a Letter from the alphabet.
    Pin number 0000 / SS# 000 00 0000 / Z
    , what is good about this is when the SS# when applied it could be in coded within the Government system as for a example 000 00 1362 will be in coded and what number you apply will inter face with the hidden SS# ? To put it bluntly If I can build a system that can not be hacked the at home Our Government should be able to.
    2009® copyright / by Massingale United Internet Advertisement Programs, this copyright is placed on the security program listed above the names of FASC Concepts and Toptentogo, and it should be noted that Microsoft has great health care ideas…..
    { Re- cape }To help cover the sick and the poor is a FASC Concept that states that to build a Health Care Forum within our Government Institution is a Peoples right to do so and this is Protect Under the Constitution as a Human and Civil Right. So in plan words if the poor and the sick could only afford to pay $5.00 to $10.00 per month this would to bring a balance toward the broken tax system, to add up this number 32 million to 100 million sick and poor people x $5.00 per month. This will place back into the system $116 million $to 500 million dollars per month. The cause and effect of this will reduce the purposed Health Care Tax Forum, to bring about a reduced effect so not to a over burden system. Take my faith in this and almost all the poor and sick would be happy to pay in and help rebuild the United States failed tax system. Also To bring about a balance of trust lost between the people and Officials.
    Under a Federal Health Care Group built by my friends and I, {You see the poor, as you see them}, as for them they see them self not poor, but of a different race of people and environment and have faith it that which was in the past that so many do not have a clue of what God and Country is all about. Those who you see as poor for most, we do not want to be took care of we wish to prosper so that our children will not be the next generation of the poor.
    Issue 1. Re caped in a short version because my little friend did not prof read before she copied and past in to the blogs ………so if Government Officials did take my 10% concept under advisement you all over looked what the purpose is. And do not for get even people who make a great deal of money some have been seriously effected by this system failure of crime and war…..
    FASC tax and pay in Forum, A Concept to help the Poor and Sick.
    MIDDLE CLASS TO THE POOR
    FASC Concepts of a guideline of income and a fair payment for the poor to the rich.
    CLASS INCOME MONTHLY PAYMENTS
    {A} format for people making up to $29000.00 per year, EST of monthly cost up to $40.00 per month
    {B} up to $19000.00 per year, EST of monthly cost up to $30.00 per month
    {C} up to $12000.00 per year, EST of monthly cost up to $20.00 per month
    {D} from 0.00 income to $9000.00 per year / cost up to 0.00 to $10.00 per month
    {A} {B} {C} {D} classification based on one person If married policy can be divided or stayed. These are concept numbers to open the mind…………..
    {A}{B}{C}
    Now for those who do not know of me, my old Health Care page at the health care link on page 2 and 1 you will find the early writings by me, the miss spelled words and I am a bit dyslectic so statements are a bit off track. And for those who did read this information will remember how I struggled to use the Artificial Intelligence of my computer to communicate. I hope that they did use my building block for Health Care, that would be cool.
    But there are some issues to work on as in:
    #1. Is There A Constitutional Infringement of a Moral Value for Health Care vs. The People { considered Force Pay ? }
    #2. Concepts is the Freedom Of Choice, because we feel it is unconstitutional to force pay into the failures of Health Care Insurance Companies and then Tax that money. Even these insurance companies are filing suit.
    #3. Should there be a Prime Directive for Health Care Reform that is in the interest for the better good of Man Kind?
    #4. Should there be a web site to show the capital gain of the tax income from Health Care and what the money was used for ?
    #5. Should children be covered by their parents Health Care Coverage ?
    #6. Is the concept offered by us at FASC Concepts to cover the sick a good or bad concept ? I believe this information it is on p26 at the blue pill link , link is on page 100 at the main site.
    #7. Abortion ?
    #8. Sex Offenders ?
    #9. Was there a Unity lost with in Government between parties that made the public feel unsecured ?
    #10. Was this diversity with in the people created by the in perfection of conduct by Officials ?
    FASC Concepts in and for Pay it Forward covers the web see why we have become the Largest web site in the United States, join us in a trickle effect on p23 the blue pill link, ?
    on google , yahoo, and aol http://www.fascmovement.mysite.com

  5. this guy
    will never have worry
    about getting health care !
    if he did he find that unconstitutional
    screw the midclass
    listen to REP
    do not cry latter !!

  6. Indeed it is unconstitutional. Constitutionally, the federal government’s powers are limited to those stipulated in the Constitution. Anything else is left to the discretion of the individual states and individual citizens.
    So what’s the federal government allowed to do? If memory serves, there’s coining money, governing interstate commerce, maintaining and deploying defense forces, taxing, and post.
    Sadly, the Constitution is only codified law, and that doesn’t stand up to precedent in our courts today (kind of a conflict of interest there). That means that a judicator can permanently detach the nation from its most definitive laws, even the Constitution.

  7. THIS GUY IS AN IDIOT
    IT INFRINGES ON MY PERSONAL LIBERTIES, FORCING MY HAND INTO MY WALLET, AND IT INFRINGES ON STATE SOVEREIGNTY!!!
    ADDED NOTES ARE THAT IT ALSO SHIFTS FOCUS AWAY FROM THE ECONOMY/JOBS, IT IS A LOT OF MONEY ON AN ALREADY INCREDIBLY HUGE DEBT–WORSE THAN PREDECESSOR AND WORST IT’S BEEN SINCE LIKE FIFTY YEARS–VERY INAPPROPRIATE FOCUS, IT PERPETUATED “GO-IT-ALONE” ATTITUDED WHICH WILL HURT BIPARTISANSHIP FURTHER, IT WAS RUSHED THROUGH WITHOUT ANY CONSIDERATION FOR THEIR PEERS OR WHO THEY ALL ARE SUPPOSED TO REPRESENT TO CAREFULLY REACH THE RIGHT CONCLUSIONS, AND . . . IT DOESN’T ACTUALLY HELP HEALTHCARE, IT JUST CHANGES THE WAY PAYMENTS ARE MADE–BY THE WAY, MY SPOUSE AND I ALWAYS DIDN’T HAVE HEALTHCARE, AND WE MADE IT . . . YOU CAN MAKE PAYMENTS AS YOU GO (NOW IT WILL BE MORE DIFFICULT BECAUSE IT PERPETUATED PROBLEMS LIKE GOING TO ER FOR EVERYTHING)
    THIS GUY IS ABOUT AS DUMB AS THE DEMOCRATIC-MAJORITY CONGRESS, WHICH JUST PUSHED THIS THROUGH BECAUSE THEY COULD AND WHICH HAS BEN INEPT, WITH RECORD LOW APPROVAL RATINGS, AS FAR BACK AS BUSH . . . THEY BROUGHT YOU WARS AND THEY TOOK YOUR RIGHTS . . . YAAY, FOR THE IDIOTS
    P.S. – VIOLENCE IS WRONG BUT THERE IS A REASON PEOPLE ARE ACTING RADICALLY . . . THEY’RE THAT UPSET THAT THEY HAVE BEEN VIOLATED BY THOSE OUT OF TOUCH WITH THE NORMAL PUBLIC
    P.P.S. – CONGRESS SHOULD HAVE TERM LIMITS, THEY SHOULD GET OUR HEALTHCARE, AND ANYONE SUPPORTING PARTIES BLINDLY, LIKE DEMS AND REPUBS, ARE THE SAME IDIOTS PERPETUATING THE PROBLEM–THINK OUTSIDE OF PARTIES, THINK ABOUT ISSUES

  8. Hi Mark:
    Re: “In short, there is no fundamental right to be uninsured, and so various arguments based on the Bill of Rights fall flat. The closest plausible argument is one based on a federal statute protecting religious liberty, but Congress is Constitutionally free to override one statute with another.”
    So are you saying then that there is no fundamental right to be “INSURED”?
    This is certainly a complicated matter but when in doubt I abide by one line of reasoning on most every political issue – “Government is not the answer”.

  9. Peter-Angelica, poor quality patient care is endemic, and not exclusive to the VA system, no matter how deep your pockets are. Fifteen million injuries per year occur to patients in the healthcare system, accoring to Dr. Don Berwick, President of the Institute for Healthcare Improvement. http://www.ihi.org.

  10. “but our government is supposed to be a representative government not a ruling party.”
    Vote them out then so you can get new representatives that will also pass laws that “mandate” you do or do not do something.

  11. Forgive me if I seem to be jumping on the anti- socialist band wagon, but our government is supposed to be a representative government not a ruling party. A representative government is supposed to represent the wishes of the people not “MANDATE” that they do as they are told or pay the consequenses.

  12. “For the first time I feel some comfort in my deceased WW2 veteran Grandfathers passing in that he doesn’t have to see what has happened to our country ( Constitution ) he fought for.”
    Tommy, would that be the grandfather who was on Medicare, and who used the GI Bill to advance his economic status?
    “BTW , my Grandfather died in a VA hospital because of inept medical practices…..I don’t think I need to expound on our government run VA hospital system. I personally took him for doctor visits there for a year as he was dying before my eyes and they (different doctors every time)diagnosed / treated him for arthritis when he had cancer all along!”
    So, how old was your grandfather at the time and what type of cancer did he have? And if you were so concerned by his treatment at the VA why didn’t he 1. use Medicare or pay out of his own pocket or 2. get you and you and your family to pay for his treatment, since you seemed to love him so much?

  13. Hi
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    For further reading http://bit.ly/bgW7bx free health insurance quotes

  14. In actuality, all powers not SPECIFICALLY granted by the constitution are reserved to the states or to the people. The Commerce Clause gives them the ability to regulate commerce yes, but what has happened here is not regulating, or even “mandating” for that matter. It is dictating, plain and simple. It is an order, pay a fine for disobeying(which means you pay for it anyway) or go to jail, you have no choice. I do agree that they could legally fund this whole program by raising income taxes like in your example, but like you said it just isn’t gonna happen politically. This was one hell of a cheap shot. This is not a tax. It goes far beyond simply regulating commerce and other constitutional powers.

  15. Hello
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    I also came recently across a site which was also depicted the same things regarding insurance needs and coverages
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  16. We have rights under the Constitution. Those Rights are Freedom of Expression, Liberty and the pursuit of hapiness. Health Care is not a right. I is a good, a service. Something that one chooses to purchase. When the Government decides to tell me that I must purchase a good, or be fined they are infringing on my rights. If the Government charges more taxes and provides health care to everyone that is different, But to force me to buy a product or good, or be fined is un-constitutional, and our Dictaror in charge does not seem to know the difference. When you allow them to tell you that you must buy Health Insurance. Then you open the door to them telling you that you must buy a home, or a car, or a boat, etc. Now would you think that is Constitutional? I should surely hope not.

  17. With the passage of this bill. It appears from http://www.HealthInsuranceSource.net and http://www.AHealthInsuranceQuote.com analysis that employers nationwide will be assessed a $2,000 penalty for every employee not offered group health insurance or commonly referred to employer sponsored health insurance. Does this include part time employees that traditionally didn’t qualify or buy health insurance in the first place because of the cost vrs. Hours worked? How in the world is an employer going to absorb this cost? So if an employee doesn’t want to participate in paying their share, the employer is penalized $2,000?

  18. The problem is the business model here. Health insurers should be non profit and off the stock exchange.
    After the Wall Street bail out, nobody want to contribute to more fat checks that are questionably earned. This will be a constant source of turmoil and both sides of the political debate would have been happier with non profit health insurance. Until we get there, the battle goes on. We have swords and they battle with machine guns:)
    http://ducknetweb.blogspot.com/2010/03/12-states-to-file-lawsuits-to-challenge.html

  19. My name is Eric Pearson, and as a Democratic Party candidate for the U.S. Congress in 2010, I want to thank the below list of the truly courageous and honorable Democrats that voted against the health care bill.
    John Adler – New Jersey, 3rd District
    Jason Altmire – Pennsylvania, 4th District
    Michael Arcuri – New York, 24th District
    John Barrow – Georgia, 12th District
    Marion Berry – Virginia, 8th District
    Dan Boren – Oklaholma, 2nd District
    Rick Boucher – Virginia’s 9th District
    Bobby Bright – Alabama, 2nd District
    Ben Chandler – Kentucky, 6th District
    Travis Childers – Mississippi, 1st District
    Artur Davis – Alabama, 7th District
    Lincoln Davis – Tennessee, 1st District
    Chet Edwards – Texas, 17th District
    Stephanie Herseth Sandlin – South Dakota, 1st District
    Tim Holden – Pennsylvania, 17th District
    Larry Kissell – North Carolina, 8th District
    Frank Kratovil – Maryland, 1st District
    Daniel Lipinski – Illinois, 3rd District
    Stephen F. Lynch – Massachusetts, 9th district
    Jim Marshall – Georgia, 8th District
    Jim Matheson – Utah, 2nd District
    Mike McIntyre – North Carolina, 7th District
    Michael McMahon – New York, 13th District
    Charlie Melancon – Louisiana, 3rd District
    Walt Minnick – Idaho, 1st District
    Glenn Nye – Virginia, 2nd District
    Collin Peterson – Minnesota, 7th District
    Mike Ross – Arkansas, 4th District
    Heath Shuler – North Carolina, 11th District
    Ike Skelton – Missouri, 4th District
    Zack Space – Ohio, 18th District
    John Tanner – Tennessee, 8th District
    Gene Taylor – Texas, 18th District
    Harry Teague – New Mexico, 2nd District
    Thank you, and God bless America.
    Eric Pearson, Democratic Party candidate for US Congress in the 5th district, Tennessee.
    Site: http://www.democraticreformparty.com

  20. Thank you, Professor Hall, for clarifying the issue from a constitutional perspective: how any country can glibly see 32+ million of its fellow citizens be denied any meaningful access to necessary healthcare is a national disgrace; and I commend president Obama for correcting that iniquity and bringing America in line with the rest of the Western industrialised world.

  21. The Social Contract, Thoreau, and the Invididual Mandate
    It used to be (and hopefully is still the case), that, if one really wanted to, one could go some place like Montana, build a cabin, and ‘live off the land’. Today people associate this with extremists, but traditionally in American history this was just called homesteading. (Until recently, this was still done in Alaska; maybe it still is.) With no income, a person wouldn’t have to pay income tax. If someone else owned the land and let the person live there, there would be no property taxes. This person could live like Thoreau, a totally free individual. And, like Thoreau, this person, by virtue of this independence, might be able to more fully realize the depths and potentials of the human soul better than those who merely live like cogs in a machine.
    Now consider that our Constitution, and our country itself, is founded on the principle of the Social Contract. By this principle, consenting individuals freely choose to abrogate the exercise of certain rights in exchange for the benefits of living in a community. Although they abrogate the exercise of certain rights (it is not clear that a person ever surrenders rights per se, but only the exercise of rights), they retain their essential freedom because they have freely chosen to participate in the Social Contract. The possibility to ‘live off the land’, or whatever else one wants to call it, arguably preserves our essential freedom. Perhaps in all cases a person would be foolish or unrealistic to drop out like this; maybe it should never be done in practice. But even if nobody chooses it, the option to live off the land exists: this makes us essentially free, and makes participation in the Social Contract a free choice.
    Contrarily, if participation in the Social Contract is forced, then not only are people not free, but the Social Contract is invalid: a fundamental, universally acknowledged principle governing contracts is that parties must freely agree to participate; any contract effected by coercion is automatically invalid.
    The Constitution does not go into the details of the Social Contract, but it is evident in the writings of the founding fathers that such considerations guided them. The insurance mandate would remove the ability of a person to live entirely freely. In theory, a person would need to earn money to pay the required subscription premium. If this does not negate the Social Contract entirely, then it is at least a fundamental alteration of in the nature of that contract, which is something not to be taken lightly. A change in the relationship of the individual to society/government this major should only be made with broad citizen support, with careful deliberation, and, preferably, only by means of a constitutional amendment.
    Further, as the connection with Thoreau helps make evident, the current debate does broach issues related to religious freedom. If we build a society where there can no longer be a hermitage at Walden Pond, then some would argue that government is attempting to limit and control the human soul.
    John Uebersax PhD is a former faculty member of the Wake Forest Medical School and RAND Corporation policy analyst.

  22. @MD as Hell
    “inflict health care on anyone”… there aren’t many people in ill health who’d feel that health care was ‘inflicted’ on them… and those that did are probably suffering from underlying mental health issues!
    Here in the UK there were many people in the medical profession who felt a similar ‘sky falling in on us’ reaction to the introduction of the NHS; their fears proved unfounded; take heart – your’s may too.

  23. Sir, there is a fallacy in your arguments. You take the position that just because something is, it must be right. Just because our income tax law is riddled with regulations attempting to persuade people to behave in a certain way, does not make it right. Just because all three branches of our government have acted outside the bounds of the constitution for more than 70 years, does not make their actions constitutional.
    While, it may in essence have the same effect, a requirement to spend money on a good is not the same a imposing a tax. One, you are pointing your gun at someone and telling them whom they can give their money to, the other you are pointing your gun at them and telling them you will give their money to whom you please. The difference is subtle and vast at the same time.

  24. Now it is a Privilege to have Health Care. Like it is a Privilege to drive a Car.If you fail to comply with rules and Regulations. You are fined,license revoked and or suspended for failing to comply with City, County, State and Federal Laws. Hardly,Unconstitutional by any stretch of the imagination to require individuals to have Health Insurance.
    In my view this Law still falls short on competition and largely Limits Patient Rights and accountability.

  25. Oh My God;Can You Believe the House had passed this Bill? Can You believe that anyone of them can fathom the breadth and Width of such a wide sweeping display of Human Kindness.
    My God; What about all of those unintended Consequences of Serving such a unworthy and undeserving group of working Class Americans. How Dare They, bring the uninsured and the uninsurable into the Fold of Humanity!
    Some time ago, a Million Dollars seemed difficult to understand. Now we speak in trillions to answer the call to our obligations. Is it only the spirit of the Christmas Season that we show our kindness, reaching out to neighbors and Friends. This is one great Nation under God, and we have made great strides in Helping those when the Need is Apparent.
    Health Care is not for so many an apparent need, because the absence of primary Care,ends with urgent Care. To Little; To Late.
    What ever, the Negative emotional State of any individual; base on Jealousy, Hatred, Envy, Bigotry, etc. The Result shall end in a self fulling Profitability of sickness and a third World Decay.
    “GET A GRIP
    MESS-iah doesn’t cover mental illness.”
    Mr F. I would like to remind you that The Mental Parity Bill became Law, in the Glorious Year of Our King George W. Bush Junior. Therefore, God has deemed Fit to not only look after my physical Health but my mental well being as well. Thank You for your concern.

  26. Yana,
    What you are suggesting goes by the name of “single payer health system” in other developed countries. Unfortunately, more people are against that concept in the US than are against the Obama plan.
    BTW, even if health care is nationalized, it can never be supplied for free, due to moral hazard. If something is free, people tend to use it more than necessary. Thus, co-pay or co-insurance or what have you, even under single-payer system.

  27. I don’t really like this bill since it is government mandated corporatism … but all the vitriol by opponents make me think that this is not really about lofty goals like individual liberty etc., but rather about tax dollars and fear of an expansion of the welfare system ….
    …. for a reasonable, relatively widely shared goal.
    Most US Americans, like most decent human beings, feel that society, via its medical system, should help the individual in an emergency (and to “help” not only by EMTALA definition, but by providing actual medical treatment, like our last president apparently assumed). Once you make that step, it is hard to avoid the conclusion that everyone should have at least basic care, as a lot of emergencies could be prevented that way, and as the borders between emergency and chronic disease are fluent.
    Health care is not like car insurance. There are no bake sale fundraisers for car insurance.
    And to all these young to middle aged libertarians who feel immortal and that they can do without insurance because they eat healthy and work out: you are doing the right things to protect your health … but that, unfortunately, doesn’t protect you from all of a sudden getting Hodgkin’s lymphoma, testicular cancer, multiple sclerosis, to name just a few.

  28. I’d like it better if it were called a tax. I accept taxes. I don’t accept being told with whom I must do business, as I like to entertain a notion of autonomy when it comes to personal financial management. I’m not willing to purchase health insurance, as it is not health care, and unless medical costs are reduced by 90%, it is not possible for insurance companies to pay all claims without their getting a handout. Why not just collect the tax from everyone, and dispense the goods at no additional cost? And get rid of the insurance company middleman.

  29. Isn’t is somewhat ironic that the ridiculous outreach of the “commerce clause” was even extended by the current conservative-leaning Supreme Court? (remember Gonzales v. Raich?) No doubt the personal madate is captured under the commerce clause.

  30. Brent:
    You should be disbarred for passing off a piece of crap from a conservative think-tank as having any authority on a federal law issue. It is almost a unanimous view among federal law scholars that personal mandate to purchase health insurance is not unconstitutional. Whether it is a good policy or not is a different matter, since not everything constitutional is a good policy.

  31. Wow, I thought this was a post originating today and already had 73 comments in just a few hours, but, I caught the dates of the first comments, from December.
    But, still appropo, eh?
    I’m just curious, when does responsible leadership ram through laws impacting on all when over half the population does not support it? And how do you advocate and defend such behaviors just because you benefit as the minority?
    In other words, why is it acceptable to paint the picture of health care in black and white, when it has a plethora of colors.
    Only the legal profession, antisocials, or those completely ignorant of pursuing the opinions of those impacted by such intrusions, think in such absolutes.
    Hmmm, says a lot about the people involved in this action, eh?
    I’m just curious, how many of the proponents of this bill were supportive of the prior administration’s pursuit of war in Iraq. Same behaviors, rhetoric, and actions, just your party doing it now makes it right?
    Democrats and Republicans, asses of the same color!

  32. BTW , my Grandfather died in a VA hospital because of inept medical practices…..I don’t think I need to expound on our government run VA hospital system. I personally took him for doctor visits there for a year as he was dying before my eyes and they (different doctors every time)diagnosed / treated him for arthritis when he had cancer all along! Everyone agrees that our present health care system needs work and the advocates of this bill keep reiterating the same few main changes we need as if that justifies this 3000 page government mandated takeover (same as Wall Street/GM ) of health care. I only want the Federal government to :
    1) Tax me fairly
    2) Build / maintain a federal interstate transportation
    system ( interstate highways )
    3) Deliver my mail on time
    4) Provide / maintain a defensive military
    5) Leave me the hell alone and get out of my pocket and
    my life.

  33. I clearly remember the argument concerning the forced auto insurance law that advocates (insurance companies) hailed before it was passed in my home state:
    ” By requiring everyone to have auto insurance then auto insurance rates will decrease ” HA HA did yours decrease one penny? What a farce this socialistic unconstitutional bill is……. This is truly scary, I feel like Mrs. Obama once said : I am ashamed to be an American. For the first time I feel some comfort in my deceased WW2 veteran Grandfathers passing in that he doesn’t have to see what has happened to our country ( Constitution ) he fought for. May God help us.

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