This week, the news has been abuzz over the oral arguments before the Supreme Court on the Affordable Care Act of 2010. Regarding the individual insurance mandate at the core of the bill, there are a two major misconceptions to clear up, one for our conservative friends and one for our liberal friends. As anyone who has compared Fox News and MSNBC coverage of any issue can attest, media has become increasingly polarized the past few years. Fox is the de facto Republican news channel, MSNBC is the de facto Democratic news channel. For those looking for a moderate news channel, CNN doesn’t much help: putting James Carville and Karl Rove on television together doesn’t magically make what comes out moderate and objective. On the contrary, the increasing sensationalism of CNN is laughable at best, dangerous at worst.
The current state of mass media aside, it’s not difficult to understand how when it comes to such a polarizing issue, there could be misconceptions about the personal mandate that fall on partisan lines. Conservatives have been trying to paint the picture that a personal mandate is a direct attack on liberty, and that health care is best approached through a free market system. However, it’s possible President Obama’s personal mandate is constitutional. Health insurance, as a product, most certainly goes across state lines, and thus could be regulated by Congress. The Supreme Court in Wickard v. Filburn has ruled that one’s inaction, if it affects the market, can be regulated: “it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.'”
The big jump comes when considering whether or not forcing people to buy health insurance is constitutional. In nearly every state, citizens who drive are required to buy car insurance for the vehicle. One could argue that it’s fine to mandate auto insurance because not everyone has to drive: you can drive on your own property without insurance, and driving on government infrastructure (roads) allows the government to regulate such things. The same, however, does not carry over to health insurance. If you show up at the emergency room with a life threatening injury or ailment, the hospital is legally required to care for you, regardless of whether or not you have health insurance. If you can’t pay, the costs get passed on to the rest of us in the form of higher premiums. Enacting a personal mandate simply takes care of the free-rider problem that is already inherent in the system. Sure, there is a liberty argument that one shouldn’t be forced to buy a product. However, since everyone will eventually use health care, by failing to buy health insurance they are forcing others to buy their health care for them, and thus there is a common good argument as well (and one Justice Roberts recognizes). An individual has an impact on the health insurance market regardless of whether or not one purchases health insurance.
Additionally, forcing citizens to buy something through Congressional mandate is not entirely unheard of, nor an affront to the Founding Fathers. As the New England Journal of Medicine points out in an article published in defense of the health care law, “in 1792, Congress enacted a law mandating that all able-bodied citizens obtain a firearm. This history negates any claim that forcing the purchase of insurance or other products is unprecedented or contrary to any possible intention of the framers.” In sum, I think conservatives need to realize that health care, as a product, is unique in that it affects everyone (as Justices Kennedy and Roberts conceded), and a reasonable case in favor of the personal mandate could be made. Anyone, of course, is welcome to disagree with that case, but it’s not as if making the argument is antithetical to the Constitution, nor does it make someone simply a liberal idiot.
On that note, however, liberals need realize why conservatives are concerned. Depending on how the Supreme Court interprets the personal mandate, it could fundamentally change the relationship between government and individuals. Without going so far, rhetorically, as Justice Scalia does in saying such a ruling could allow the government to force citizens to eat broccoli, it does open the door to the government taking a more involved role in our private lives. Justice Kennedy’s comments helped frame the issue well. Liberals need to understand that, if taken from the conservative perspective, the personal mandate fundamentally changes the relationship between the individual and government, and thus requires a very heavy burden in order to remain constitutional. I don’t believe the hyperbole that affirming the mandate would in turn allow the government to force us to do any number of absurd things. That being said, conservatives raise a very important point. If it were to be deemed constitutional, the ruling must be very deliberate in stating that the nature of health insurance makes it a very unique product in the free market, and because of its unique place in the market it is constitutionally permissible to mandate and regulate it.