Well, this from the LA Times raises an interesting question.
An important element is being overlooked in the healthcare debate between the Democratic presidential candidates: Namely, whether the plans they propose are constitutional.
The largest difference between their healthcare plans is that Sen. Hillary Rodham Clinton would “mandate” that everyone (with limited exceptions) purchase private health insurance. Although Sen. Barack Obama’s plan also contains a mandate, it is much narrower — it is only required for children. Obama principally relies on subsidies, economies of scale and regulation to voluntarily achieve his version of universal coverage.
Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.
I’m completely in favor of universal health care. I realize we’re going to have to settle for universal health insurance at best in the shorter term. Even so, mandates to purchase private health insurance have always struck me as icky. That’s not to say that the reasons proponents believe in them aren’t valid. They are valid, but that doesn’t mean they’re the right way to go. It just means that there are significant problems with providing universal health coverage via the private, mostly for-profit, insurance market instead proving it as a federal program funded by progressive taxation.
Health insurance mandates have been compared to the requirement to have automobile insurance. It’s never seemed to me that one thing had anything to do with the other. Driving is a thing you do. It might be a necessity for you, but driving a car is not the same as occupying your own body, which, astral projection aside, seems to be the most basic part of the human condition. In fact, you’re not even required to buy auto insurance to be a licensed driver. You have to have it to own and operate your own motor vehicle. That’s all. And even at that, the law is only going to require you to have liability insurance. If there are other mandates it’s because you have a loan on the vehicle and they’re part of the contract with the lender.
Some of my favorite politicians and pundits are in favor of mandates and I respect their opinions, but it does seem possible that the ickiness factor could also be a legal bar to instituting mandates at all. I hope some more constitutional law experts weigh in.