As recently as August 13th The controversial individial mandate for health insurance was in the news. An article about a judgment on the affordable care act caught my attention, ominously sharing a page with a downward, ragged graph of the stock market. Here is an electronic version:
http://online.wsj.com/...
Yes, it is a pity, another judge ruled against a mandate to have folks (young folks) invest in their health security. Though, this time it is a democratic appointment who made the call. As the judge wrote in his opinion, such a mandate may be a power available to the states but is not a power of the federal government. Said another way, states regulate insurance and no federal mandate for health insurance can be forced upon citizens. I agree this view is valid, and if this is what drives the Supreme Court’s discussion, I expect the provision will be declared unconstitutional. Oh well, next year we will see this before the Supreme Court, and they may very well rule against it. However, the conventional wisdom is that a narrow ruling will emerge against that single provision. It does seem unlikely they would be able to rule against the entire two thousand pages of the affordable care act. Do the mebers of the court wish to wade through all that; does the prospect or renegotiating this in congress color their thinking. It took thirteen months the first time through; can we tolerate another debate? Will Moody's and S&P afford us another debate?
I have written before that the loss of the mandate makes the law difficult to implement but not impossible to rollout. Already in my state of New Hampshire we are proceeding with developing the key organizations, accountable care organizations, which are described in the affordable care act. We are doing this even while our own state government is actively avoiding funding any statewide program to implement the affordable care act —even while our legislature is pulling Medicaid funding from hospitals. On another day I will have more to say on how this is bringing about a lawsuit from thirteen of New Hampshire’s largest hospitals.
The perils of healthcare funding leads me to ask whether an alternative prediction has merit: Can the individual mandate pass as constitutional because it provides an avenue to protect and preserve heath care security in the form of a sustainable hospital system and insurance system?
I mention this because, I am sure the courts know we are under threat by the cost of our present arrangements; they see the news of insurance rate hikes and see that most of the law is intended as a mechanism to preserve healthcare institutions. They may even see this situation as a threat to property and trade. And, when it comes to a property right or trade, it is not unprecedented for the court to defend the actions of a nonhuman entity at the expense of an individual's liberty.
The courts have made some unpalatable decisions—from a perspective of fairness to the individual, but are “efficient solutions,” in the jargon of decision theory, to provide a maximum in the net sum of social wealth. Limiting an individual’s act of cultivating wheat or marijuana protects interstate commerce is the frequently cited precedence. Municipalities have eminent domain that can result in seizure of a house is a recent controversial decision. (Correct me if I am wrong, but isn't the Citizen's United decision giving corporations rights to free speech another, troubling, entry to this same list.)
In this way the majority decision may not ultimately be about the inaction of an individual and not explicitly about cost shifting to another individual—I believe these individual rights versus individual rights issues are the arguments offered by the administration and the Justice department. What I am trying to ask is whether there is room in the jurisprudence of the commerce clause, or other rulings, to provide us an answer to the following question: What are the individual’s rights in relation to the privileges of a larger actor in society? Surely an individual’s actions can be guided when a social good is served, which in this case is preserving the needed institutions of a local hospital or an insurance pool. We already agree it is the greater good not to yell fire in a crowded theatre; this is because, one individual should not harm others with negligence. I am asking a similar question about a more asymmetric relationship. Does an individual have the right to harm an institution with negligence?
Keep in mind, for every one of us the appearance into the medical system at some point in all our lives is so probable that it is better served to declare it inevitable. And, because healthcare is so costly in money, time, and opportunity-cost then, some demand on us as individuals a monetary mechanism—perhaps taxes, insurance, or savings accounts—is needed to prepare the funds for that eventual appearance into the health care system. Birth is mainly in hospitals, sports physicals are mandatory, driver's license eye exams are routine, life insurance exams are frequent; then there is acute illness, chronic illness, and catastrophic illness. Add to that invalidity and death. All of these will involve the healthcare system. Who is able to avoid all of them?
The present health insurance industry most of us know will never be permitted to collect in the form of increased rates, let alone have the carte blanche permission to pay out, the $30 Trillion in health expenditures which are expected to be spent in the next 10 years. No other national project has been this expensive and will never be left to run its course without more scrutiny. It follows, according to our values, that the promises for healthcare coverage we made to ourselves and family will be honored regardless of the present political resistance to government intervention and will be dealt with over the upcoming decade in one form or another with government as a patron. Perhaps the Supreme Court will see preservatoin of healthcare security as their mandate and so what if that healthcare reform requires a subsidy in the form of a user fee, a mandate, or a surtax.
1:30 PM PT: When I wrote his diary last night I forgot to mention yet another scenario i had read about. Below is the quoted provision in the healthcare bill. Indeed, as I have heard in other discussions of the individual mandate, it is actually framed not as a mandate but as a tax on those individuals who do not have acceptable coverage. It looks to me that it is not phrased at all as a requirement that someone buy anything. Where in all this legalese is an explicit mandate?
With this in mind, is it a possible the Supreme Court decision –narrow, as it will likely be–will accept the provision when it is proposed as a tax? There is no question that it is constitutional to tax the individual and there is no question about imposing taxes on certain brackets of individuals—usually this is income brackets, but in this case it is those individuals who meet certain income criteria and choose not to purchase insurance.
``SEC. 59B. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE HEALTH CARE COVERAGE.
``(a) Tax Imposed.—In the case of any individual who does not meet the requirements of subsection (d) at any time during the taxable year, there is hereby imposed a tax equal to 2.5 percent of the excess of—
``(1) the taxpayer’s modified adjusted gross income for the taxable year, over
``(2) the amount of gross income specified in section 6012(a)(1) with respect to the taxpayer."
http://en.wikisource.org/....
Fri Aug 26, 2011 at 6:03 PM PT: I thank everyone for a vigorous discussion. I will return to some of these points in the weeks to come..