I am not fond of the health insurance mandate included in the Patient Protection and Affordable Care Act. I agree with Michael Moore that people aren't cars. If health insurance is so important that it warrants a government intervention in the free market as drastic as the insurance mandate introduced to us by Republican Mitt Romney in Massachusetts, then we should skip the middle man and move straight to a universal single-payer system that would guarantee coverage for every American.
I thus react with some ambivalence to Judge Henry Hudson's ruling in favor of the Commonwealth of Virginia challenging the insurance mandate on Constitutional grounds. The ruling is pretty thin gruel in some eyes, a thorough rejection of Obamacare in others.
Hudson rules on two key points. He accepts Virginia's argument that the enforcement of the insurance mandate is a penalty, not a tax. That may not matter to the average citizen—either way, it's money out of your pocket—but it matters to the court and the Constitution. If it's a tax, then Congress can act under the General Welfare Clause, and pretty much every court challenge to health care reform ends. If it's a penalty, then Congress is acting under the Commerce Clause.
That's where things get interesting. Virginia's challenge, like others, hinges on the idea that Congress act under the Commerce Clause to compel people to participate in interstate commerce by buying health insurance. The federal government says everyone eventually participates in the health care "market," and choosing not to buy health insurance shifts costs to everyone else in the market, so federal requirements to maintain financial responsibility for one's own health care via insurance are justified regulation of interstate commerce. Judge Hudson sides with Virginia: he says the government can regulate activity but not inactivity.
Yet state and local governments apparently retain the authority to regulate a host of other economic inactivities. South Dakota still penalizes you for not buying car insurance. The sheriff will nab you for vagrancy if you don't buy or rent a domicile of some sort, and the city or county will come after you again for nuisance violations if you don't engage in enough economic activity to maintain that domicile sufficiently. We punish parents if they don't purchase sufficient food, clothing, and shelter for their children. And not that I need much persuading, but the government will get on my case if I don't engage at some bare minimum in the clothing market.
Judge Hudson's ruling does not threaten state insurance mandates; Hudson appears concerned only with "unbridled exercise of federal police powers."
But the ruling brings me back to my basic argument for a universal single-payer health insurance system. Insurance works better when you get more people in the pool to share the risk. The best insurance possible would be the biggest pool possible: all 307 million Americans in one big pool. We all pay for one big army to protect the entire country from invaders and terrorists and other disruptive forces. We could all pay for one big army of doctors to protect us from the physical and economic devastation of disease and injury.
The right way to provide that universal protection is to stop viewing health care as a matter of commerce (health care doesn't work by free market principles) and start viewing at as a general welfare issue.
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