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Constitutional Serendipity

Serendipity is not a word one usually associates with the present raucous debate over the “individual mandate” of the Patient Protection and Affordable Care Act. Democrats tend to support both the mandate and the PPACA, while Republicans tend to oppose both. However, this “between the devil and the deep blue sea” approach, whereby one makes a Hobson’s choice between being tyrannized by a government command to buy health insurance, or seeing no comprehensive health reform enacted in a country that needs it, is a false dichotomy, serendipitously enough.

The PPACA offers comprehensive reform, including welcoming features such as guaranteed issue of insurance regardless of preexisting medical conditions. However, the fact that the PPACA has valuable features doesn’t automatically legalize any possible measure designed to fund the Act, including coerced health insurance purchase. As former Vermont governor Howard Dean noted in August 2010 on MSNBC’s The Daily Rundown, Vermont enacted a successful state health care program without an individual mandate; Dean emphasized, “And people don’t like to be told what to do.” This latter factor is not negligible in a country with a statue in New York Harbor dedicated to liberty. (Perhaps this is why a June 9, 2011 CNN poll shows 54% of Americans opposed to the mandate, and other polls report similarly.)

Our American liberty has various constitutional and legal underpinnings which can defend people from the federal individual mandate, and maybe even from state individual mandates. As for Congress’ power to tax for the general welfare: taxes and penalties, such as the “Shared Responsibility Payment”, the PPACA financial penalty for refusal to buy health insurance, are not just interchangeable “economic incentives”.

Unlike a tax, a penalty may have to serve an enumerated power of Congress, as noted in the Sunshine Anthracite Coal Co. v. Adkins Supreme Court case (1940). But coerced insurance purchase is hardly an enumerated power. (There is no “Coerced Commerce Clause” in the Constitution, as readers may have noted.) Alternately, the Government may try to say the “Necessary and Proper Clause” (a.k.a. the “Elastic Clause”) of the Constitution gives them whatever powers are necessary to execute the mandate. However, the 2010 U.S. v. Comstock case offers five criteria for enabling the “Necessary and Proper Clause”, and the individual mandate fails four of them: i.e., the mandate isn’t a modest addition to previous statutes; isn’t a reasonable extension to existing policy, considering all the alternatives; doesn’t sufficiently respect states’ role; and isn’t of narrow scope. In addition, in the venerable McCulloch v. Maryland case from 1819, Chief Justice John Marshall says “measures…prohibited by the Constitution” would not be proper. So do we have individual constitutional rights prohibiting the mandate?

It seems very much so. In the Bill of Rights alone, there is First Amendment freedom of association (or of non-association with insurance companies); Fourth Amendment privacy (do you want an insurer to know your private health secrets or not?); Fifth Amendment due process and economic liberty (there may be a fundamental right not to contract at all, including for health insurance); Ninth Amendment unenumerated rights; Tenth Amendment rights not to be commandeered; etc.

About economic liberty in particular: since the New Deal the old “fundamental right to contract” has been restricted by legislation including civil rights legislation, e.g., a restaurant or motel owner cannot refuse to sell to people of a certain skin color. But does that mean that you can’t refuse to contract, or do business, with anybody at all? For example, could the government have forced the racist motel owner in the Heart of Atlanta Motel 1964 civil rights case to get into, or stay in, the motel business in the first place? Or, could the government have “mandated” Martin Luther King or Rosa Parks to purchase a room at the motel in the name of “regulating interstate commerce”? One certainly hopes not. That would be King’s or Parks’ choice, not the government’s. Just as it should be your choice to buy or not to buy health insurance.

There’s also the issue of dignitary injury, which may give legal standing to sue the injurer. The name of the “Shared Responsibility Payment” has a sickening implication that it’s your responsibility to buy a certain private product. Is this stigma needed? In fact, if the government passed a law saying “Responsible people are Presbyterians, not Methodists”, this should be offensive even to Presbyterians as well as Methodists; similarly, the government’s implying that “You’re good if you buy health insurance, bad if not” may offend even those with health insurance, who hardly need to be judged in such a strange matrix.

By the way, are Americans really evil, “irresponsible” freeloaders for not buying health insurance? What if they follow a diet and exercise regimen which makes them far more responsible than someone with health insurance who eats 10 Big Macs a day? Or, rather, are the insurance companies (and the politicians they donate to) the real “freeloaders”, benefiting from the bizarre new requirement that people be punished for not buying those companies’ products?

Also, as noted in the 11th Circuit Court of Appeals decision about the PPACA on August 12 in Atlanta, people might not actually be able to “game the system” and buy insurance on the way to the hospital, despite a myth that that’ll happen. In any case, fear of some “freeloaders” shouldn’t be used to force nearly the whole country into a “prior restraint”, or “mass restraint of trade”, of buying or maintaining unwanted health insurance. (Remember the Sherman Antitrust Act and its prohibitions on restraint of trade, or other actions which overly benefit large corporations or conglomerates…like the insurance industry, which benefits from the government compelling health insurance purchase?) Punishing 99 innocents to get one “guilty” person is not a favored tradition in America.

Fortunately, there is a way out, a legally serendipitous one, which produces a de facto “compromise” without even trying to. One need not knock down the whole health care act by knocking down the individual mandate, which may be legally severable from the rest of the Act; the mandate is a funding mechanism, so alternate funding mechanisms can be substituted, whether ending tax breaks on billionaires, or adding tax deductions which promote health insurance purchase, or setting rate caps on insurance prices. Our country has enough ingenuity to preserve the “positive liberty”, to quote Isaiah Berlin, of offering opportunities for better health care, while also preserving the “negative liberty” of being free from State-coerced insurance purchase. (President Obama believed this before the 2008 election; maybe he can start believing again.)

Or, putting it in constitutional terms, the courts can uphold the PPACA and thus respect Congress’ lawmaking powers under Article I of the Constitution, while also respecting our constitutional rights not to buy unwanted health insurance. The 11th Circuit did this last August, by striking down only one part of the PPACA, the excessive and tyrannical individual mandate. That just following the laws and common sense could lead to such a serendipitous result, whereby both “sides” in the health/mandate debate get something substantial they want, is a very nice thing. One hopes the Supreme Court, whenever the issue gets there, will decide the same way. After all, under our laws and Constitution, we have the luxury of not having to throw out the baby with the bathwater; that is, we can save not just American health, but also American liberty.

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