Obamacare and the risk of 'positive rights'

Posted: Wednesday, December 22, 2010

The recent court decision striking down the linchpin provision of the health care bill is a reminder what’s at stake is larger than the future of Obamacare. If this law passes constitutional muster, the question is whether the federal government can be constrained by any limits at all.

At issue is the personal mandate, the part of the law that says everyone must buy health insurance or pay a penalty. The implications were aptly captured by U.S. District Judge Henry Hudson, ruling in Virginia vs. Sebelius one of several lawsuits challenging Obamacare.

Two other federal judges have upheld the personal mandate, but Hudson saw the law differently. He pointed out neither the Supreme Court nor any federal court of appeals has held Congress’ power to regulate commerce means people can be compelled to buy a product from a private company.

If that provision is upheld, the implications are deeply troubling.

Up to now, defenders of the health care law have airily dismissed such concerns. House Speaker Nancy Pelosi, asked to name the constitutional provision on which the personal mandate was based, famously replied in an outraged tone: “Are you serious? Are you serious?”

During the health care debate, it was common to hear people piously assert health care should be a right, perhaps unaware of the full implications. The ongoing strikes and riots in Europe, however, represent the long-term risks of the progressive vision, in which government-delivered social benefits are portrayed as personal rights.

No wonder they’re rioting in Europe. They believe their personal rights are being violated by budget cuts brought on by the sovereign debt crisis.

Government benefits expressed in this way are known to political scientists as positive rights, which differ from the negative rights with which we’re more familiar. Negative rights generally describe things the government cannot do — take your stuff without due process, stifle your right to express your point of view, lock you up without cause, etc.

Positive rights describe things the government says it will do for you. A good example was the Second Bill of Rights pushed by President Roosevelt. Everyone, he said, should have the right “to a useful and remunerative job ... to earn enough to provide adequate food and clothing ... to adequate medical care ... to a good education” and more.

Worthy goals, all. Who’s against such things?

Certainly a highly developed economy should not be without social welfare programs — pensions and health care for seniors, aid to the indigent and the like. The problem is elevating benefits to the level of rights confers an unlimited grant of power to the government. In the legislative process, laudable sentiments too often emerge as programs with unconstrained costs or, in the case of the personal mandate in Obamacare, policies that rely on coercion.

As federal lawyers told Judge Hudson, the personal insurance requirement is the “vital kinetic link that animates Congress’s overall regulatory reform of interstate health care.”

From the government’s point of view, positive rights are marching orders. Heaven and earth must be moved to deliver the promises. The state grows rapidly and ultimately it outruns the capacity of the tax base to pay for it all, endangering the financial security of everyone.

Thirty years ago, Portugal’s government cost its taxpayers about 20 percent of GDP. Then a new constitution was written, chock full of positive rights the right to housing, education, health, social security. The size of government doubled. Portugal’s borrowing costs, like that of Greece and Ireland, have ballooned.

It’s no coincidence those who believe health care is a “right” were, like Pelosi, initially flummoxed by the notion that a serious constitutional challenge was even possible. Who could worry about legal niceties when the noble goal of universal health care is within reach?

Once upon a time, President Barack Obama seemed to understand the kind of opposition a personal mandate would generate. That’s why when he ran for president, he was against it and criticized Hillary Clinton for proposing such a thing.



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