Sunday, May 23, 2010

Case Closed on the Conservative Attack on the Health Insurance Mandate

I've written several posts on the right wing attack on the requirement that individuals obtain health insurance or pay a modest penalty, most recently here and here.

Although the challenge to the mandate being brought by twenty Attorneys General (all but one Republican, and many seeking credentials for forthcoming election campaigns) has not yet come to court, in my view the case is now closed. What convinced me is an article by Charles Fried, the brilliant constitutional lawyer who served as Solicitor General under President Reagan from 1985 - 1989.

Fried cites a recent 7 - 2 Supreme Court ruling in the recent United States v Comstock case. The question in Comstock was whether the federal government has power to detain persons deemed sexually dangerous when their prison sentence has been served. All justices except Thomas and Scalia agreed that the Constitution allows the federal government to regulate interstate commerce and protect the public from harm, such as the danger posed by the appellant.

Here's what President Reagan's Solicitor General had to say about the suit against the mandate:
For the health regulation to work, though, it is “necessary and proper’’ — the clause explicitly in play in Comstock — to nudge (with the $700 penalty) the young and healthy to enter the insurance pool, and not to wait until they are old and infirm. Insurance just won’t work if you could wait until your house is on fire to buy it. But, say the objectors, this is not penalizing someone for doing something harmful; it’s penalizing him for not doing something, and that’s somehow different.

It is not. Congress has the power to enact the regulatory scheme and to design it in a way that is “necessary and proper’’ to its good functioning, and that means sweeping in the unwilling...

A more telling precedent is the Supreme Court’s 1905 decision in Jacobson v. Commonwealth, which rejected a complaint against Massachusetts’s compulsory vaccination law that it said infringed the “inherent right of every freeman to care for his own body and health in such way as seems to him best.’’

Whatever Jacobson’s right to care for himself, he had none to impose risks on his fellow citizens. A healthy, young person who persists in staying out of the insurance pools imposes a burden on his fellow citizens also.
The Supreme Court will ultimately have to rule on the constitutionality of the insurance mandate. But when the leading conservative constitutional lawyer sees the law as Charles Fried does, it's a stake in the heart of the Attorney General's suit. And if the Supreme Court recognizes the same communitarian values that Fried emphasizes, it will provide an important piece of moral education for the country.

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