By Daily Record Staff
Posted: 4:00 pm Wed, June 8, 2011
When the 111th Congress began crafting what came to be the Patient Protection and Affordable Care Act (PPACA) it attempted to resolve one of the most inscrutable problems facing all health care regimes, i.e., everyone consumes health care but not everyone pays for it.
Further, as the Emergency Medical Treatment and Active Labor Act of 1986 requires hospitals to treat all emergency room patients regardless of ability to pay, (55 percent of emergency treatment goes unpaid annually), those unpaid emergency care costs are shifted to people who have paid into the health insurance system. Because the health care system treats everyone, the system will eventually break down if everyone doesn’t pay into it. There can be no “free riders.”
The obvious statutory analogue is Medicare, the (nearly) single payer health plan for people over the age of 65 which is funded by a mandatory 2.9 percent payroll tax. Under Medicare, medical costs for care for the elderly are socialized – everyone pays for elder care during their working life (whether you need it or not) – and it’s there for you when you retire.
A single-payer, universal payer system similar to Medicare was rejected by the 111th Congress, replaced by an “individual mandate” which requires everyone to purchase health insurance on the open market or (beginning in 2014) pay a tax of $695 or 2.5 percent of your income, whichever is higher. Ironically, during the national health care debates of 1993, the “individual mandate” was an innovation offered by Senate Republicans in a bill remarkably similar to the individual mandate of the PPACA.
The 1993 mandate was favored by conservative legislators who felt that it called upon important personal virtues such as self-reliance and individual responsibility for the provision of a universal need, rather than simply allowing citizens to passively consume the largess of a “nanny state.” Indeed, four of the senators who co-sponsored that 1993 legislation which included the individual mandate – Orrin Hatch (R-UT), Charles Grassley (R-IA), Robert Bennett (R-UT) and Christopher Bond (R-MO) – voted against it in 2010.
What changed since 1993? Why is the Republican Party’s 1993 individual mandate provision today emblematic of the encroachment of European socialism? Put simply, politics. The Republicans have gone farther to the right on the ideological spectrum since 1993, and they are now embracing the previously fringe arguments of radical libertarianism. They have gone from advocating reduced government to little or no government, and the new orthodoxy holds that the government has no role in providing health care to its citizens.
In this heated new ideological environment, the PPACA has been challenged by Republican Attorneys General across the nation as unconstitutional. Their argument focuses on the individual mandate, calling it outside of Congress’s Constitutional “Necessary and Proper” powers (US Constitution, Art. 1, Sect. 8, Clause 18). The argument is that Congress has no power to regulate “inactivity” (i.e., not buying insurance) and may not force citizens to purchase insurance (or anything else) in the open market. As will be seen, neither argument is meritorious.
Although clever wordplay, “regulating inactivity” is merely another way of saying that government is applying an affirmative obligation on its citizens. There is ample precedent for this, such as compulsory education, taxes, and service in the military (during a draft).
Further, an individual mandate requiring the purchase of items on the open market has precedent in the Second Militia Act of 1792, passed by the 2nd Congress and signed into law (and later invoked) by none other than President George Washington. The Second Militia Act required all men eligible for militia service to outfit themselves with a military style firearm, ammunition, and other equipment, even if such items had to be purchased in the marketplace.
Most importantly, as of a matter Constitutional interpretation in the United States Supreme Court, the issue isn’t even close. Overturning the PPACA would jettison two centuries of settled precedent and reorder our republic in a way considered and rejected by our founders.
Since Chief Justice Marshal’s landmark decision in McCulloch v. Maryland (1819), the Necessary and Proper Clause has been liberally interpreted to permit Congress to create laws that seek an objective that is within its enumerated powers, so long as it is rationally related to the objective and not forbidden by the Constitution. Regulation of interstate commerce and, specifically, regulation of the insurance industry, has been held by the court to be within Congressional powers.
As recently as 2005, Justice Antonin Scalia (hardly known for his socialist proclivities) explained that the necessary and proper clause gives Congress broad authority to ensure that its economic regulations work. In Justice Scalia’s words, “where Congress has authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Although I obviously disagree with the Constitutional arguments of the opponents of the PPACA and I believe their arguments will fail at the Supreme Court, the fundamental challenge they have posed is a useful one. Our republic has endured thus far under the rubric of a federal system devised by our founders and memorialized in our Constitution.
Is it time to make the radical decision to abandon federalism? Is it time to augment the sovereignty of the state government over the federal? Declare a nation of sovereign citizens and begin our great experiment anew?
It’s a fair question to ask, even if the answer can only be “no.”
Frank Housh is owner of the Housh Law Offices in Buffalo and co-chair of the American Constitution Society’s Western New York Lawyers Group. He will be participating in a public debate on the issue of the Constitutionality of the Affordable Care Act today at 5:30 p.m., Gleason Auditorium, Rochester Central Library. The event is free and open to the public.