Outside editorial: Health care mandate should clear constitutional hurdles

Posted: Sunday, July 25, 2010

The following editorial first appeared in the Concord (N.H.) Monitor:

The sweeping health care reforms adopted under the Obama administration have always hinged on the ability of the federal government to require citizens to either purchase insurance coverage or pay a penalty in the form of higher taxes. Lacking a mandate, a big percentage of the young and the healthy would forgo insurance, at least until they were already ill. That would drive up costs for everyone else and make the system unfair and, for many, unaffordable.

Some 21 states, however, have sued to prevent the mandate from going into effect on the grounds that it's unconstitutional to require citizens to spend their own money on something they may not want. Those states are wrong, but that doesn't mean that they won't prevail if they come before a Supreme Court with a history of issuing 5-4 decisions on controversial issues.

The high court's split decisions are inherently impermanent and they lack the legitimacy of rulings issued by a court that speaks with a strong, majority voice. But while they last, they are the law of the land, and health care reform could be torpedoed if the court rejects the mandate. Anything could happen, of course, but smart money is on a 5-4 ruling in which Justice Anthony Kennedy casts the deciding vote allowing health reform to go forward.

The case for the constitutionality of a mandate is strong. The administration is arguing it on two grounds: that the mandate falls within the federal government's authority to regulate commerce between the states, and, belatedly, that imposing it is a permissible use of the federal government's taxing authority. It is right on both grounds.

It's facile to argue that a decision not to buy a product cannot, since no purchase is made, constitute commerce. The reality, in a nation where health care costs consume nearly one-fifth of the economy, is that a decision not to purchase in itself effects commerce.

The sick or the injured, whether they are insured or not, will not be left to die on the emergency room steps. They will receive care that will impose a cost on the insured citizens in whatever state they happen to receive care.

The Obama administration was apparently loath to refer to the health care mandate as a tax, but it has belatedly bolstered its case with the courts by calling the mandate a legitimate use of the federal power to tax. That's a cleaner line of argument than its case under the historically elastic commerce clause. Whether government taxes citizens directly to provide them with health insurance - the cheaper, more efficient path chosen by most developed nations - or requires them to spend their own money to buy coverage, the result is the same.

The mandate does not force citizens to get care or determine what that care should be. It only requires that if a citizen does get care, he or she, through insurance coverage, be able to pay for it and not pass the cost on to someone else.

The health care mandate should survive court challenges, but in the unlikely event that it doesn't, its failure will make a strong case for national health insurance.

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