So What If It's Constitutional?

The Supreme Court just finished hearing the oral arguments from the Solicitor General, who attempted to defend, and the lawyers representing the states that have filed petitions to strike down the Affordable Care Act, colloquially known as Obamacare. At the center of the argument is whether the individual mandate, that all Americans must purchase health insurance, is constitutional. The argument of the government made by the Solicitor General is that it is constitutional under the commerce clause within the constitution.

The Commerce Clause in Article I, Section 8 of the U.S. Constitution, states that “The Congress shall have Power…To Regulate Commerce with Foreign Nations, and among the Several States, and with the Indian Tribes.”

The Solicitor General’s argument is that healthcare is an interstate commerce, and that the individual mandate for people to buy healthcare is a means of regulating that commerce. The idea is by requiring everyone to purchase health insurance, it will keep healthcare costs down, because there will be virtually no one who is uninsured. When a hospital sees someone who is uninsured, the hospital doesn’t get paid for that patient. So they charge more to the person who is insured and who will pay to cover the loss caused by the uninsured. By requiring everyone to be insured, it keeps healthcare costs down for everyone.

Another element is that the requirement that everyone be covered with the same level of insurance (whether an individual actually needs a certain type of insurance or not) keeps the insurance costs down for everyone. By requiring everyone to be covered for birth control costs, everyone pays less for birth control coverage. It doesn’t really matter whether a person needs birth control or even wants it. Lesley and I practice natural family planning (successfully, I might add). Yet, under the mandate, we would be required to pay for birth control coverage. By requiring everyone to pay the same for the cost of coverage for, say, heart disease, it keeps the cost down for those who are at higher risk for heart disease. In other words, the young, healthy athlete who is at minimal risk for heart disease will share the cost of coverage for the overweight, middle aged man with high blood pressure who eats a Culvers Double Bacon Cheeseburger every day for lunch. The fact that the young, healthy athlete is at minimal risk for heart disease is irrelevant, because he may be at risk in the future, and he doesn’t know exactly when that risk may develop.

The Solicitor General argued that this is not creating commerce in order to regulate it because everyone is already in the healthcare market. At some point in your life, you will need some kind of healthcare. So it’s not like they’re forcing you to buy healthcare. You will need it, and you will need to pay for it. By requiring you to get insurance and requiring you to get a certain level of insurance, they are regulating the method of payment of an interstate commerce (healthcare), and therefore keeping the cost of healthcare low for everyone.

That’s the argument.

So these two elements, requiring everyone to have insurance and requiring everyone to have the same level of insurance, whether an individual is at risk for what he or she is required to be covered, is under judicial scrutiny. Let’s assume for a minute that the law stands as constitutional. Personally, I’m hoping and literally praying that it gets struck down, but for arguments sake, let’s pretend that it stands. I think we need to ask the question: Is this really something we want our government to be able to do?

We give the government permission to do what it does. That’s what it means to have a government of the people and by the people. If we give the government permission “to regulate healthcare” under this premise, think about the repercussions.

Everyone is already in the transportation market, whether someone owns a car or not. In other words, everyone at some point in his or her life is going to have to go from point A to point B. You prefer public transportation, and so you don’t even own your own vehicle. Under the reasoning of the Solicitor General (and those who passed this law), the government could require you to purchase “Transportation Insurance,” in case something were to happen to you while you were going from point A to Point B. By requiring everyone to purchase “Transportation Insurance,” the government is making sure that everyone is covered during this commerce activity. Not only can the government require you to purchase “Transportation Insurance,” but they can also require you to purchase “Full Coverage Transportation Insurance,” which is the same insurance that they require people who own their own vehicles to carry. I mean, you know, just because you don’t own a vehicle now, doesn’t mean you won’t buy one in the future. And by distributing the cost over a larger pool, it keeps the costs down for everyone.

Or let’s say the government wants to focus on those who are specifically in the automobile market, you either own a car or are looking to buy a car. The government could say that it wants to regulate your method of payment for a vehicle, so now it’s going to require everyone who owns a vehicle to have a loan on that vehicle. Whether your vehicle is already paid off or not is irrelevant. If it’s already paid off, you are forced to take out a loan against your vehicle. I mean, wouldn’t a few extra thousand dollars in the hands of that many consumers be good for the overall economy? By requiring everyone who owns a vehicle to take out a loan on the vehicle, it redistributes the risk associated with those who are at high risk of defaulting on their loan payments. Everyone will pay less interest on their loans, because the pool of those paying loans will be larger. It’s really irrelevant whether you need a loan to buy a car, it’s better for the majority to make everyone have a car loan because it keeps bank interest down on loans. By doing this, it makes loans more affordable for those at higher risk. Also, the risk of an individual defaulting on the loan payments is irrelevant. If person A defaults on their loan payments, it’s not as a big a blow to the bank because you’ve got persons B through K paying on their loans faithfully.

The same argument could be made for housing, since everyone is in the “shelter market,” because everyone needs shelter. So, from now on, the government is going to regulate the method of payment for housing. You are no longer allowed to rent. You must buy your place of residence. Not only that, you must take out a mortgage for your place of residence. By spreading out the risk of those who would default on the payment among everyone, then the costs are lower for everybody. Right?

The law, in other words, is consistent with what we’ve known about President Obama and the democrats who controlled both houses of congress when it was pushed though congress. It is basically a policy of redistribution of wealth. What the government proposes to do is to make some pay more (those who are low risk, and therefore can get by with minimal or no insurance) in order for others to pay less (those who are at high risk for needing medical care).

You may think that my illustrations are far fetched, but there is a principle of law that needs to be understood: Restrictions in the law must be read restrictively, and permissions in the law must be read permissively. In other words, when something is restricted, it is restricted only in that circumstance, under those conditions. If something is permitted, it is permitted in all circumstances, and under all conditions. If we give permission to the government to regulate “the method of payment for healthcare,” that permission is granted to the government to regulate the method of payment for everything. Permissions are read permissively. Do we want to give the government that permission?

I wish Americans had thought long and hard about this prior to electing President Obama; then we wouldn’t be in this state where so many of our freedoms are being threatened under the guise of “it’s better for everyone.” Maybe we should start thinking about it now, before he gets re-elected, “and will have more flexibility,” as he put it.