Constitutionality of the health insurance mandate

Now that two lower courts have ruled in favor of the constitutionality of the individual “mandate” (requirement) provision of the Affordable Health Care Act, and two other courts have ruled against it, the question now goes to the U.S. Supreme Court, but not on the “fast track” for immediate resolution. What are the issues, and what is the likely outcome?Even many supporters of the derisively labelled “Obamacare,” and its predecessor, “Romneycare” in Massachusettts, are understandably concerned that the requirement that all citizens purchase private health insurance is an unconstitutional overreach of the power of Congress “to regulate commerce” under Article I, Section 8.3.Both Obamacare and Romneycare share the same vice: They both drive individual citizens into the open, waiting arms of the for-profit, private insurance industry, forcing the citizen to buy a product he may or may not want at a premium price defined by the so-called “free” market. Since when can government, under the banner of regulating commerce, have the right to force you to buy an automobile or a washing machine? Don’t you have a right not to buy? Is such “economic inactivity” still “ economic commerce” ?The error here is to think that the “commerce clause” is the key to the debate. Of course, the federal government has many constitutionally specified powers, such as the right to impose a military draft or require jury duty. But health care is not specified. The controlling source of authority here is the power of Congress “to provide for the general welfare” under Article I, Section 8.1. This is the constitutional basis for Social Security, Medicare and Medicaid. The current argument in the lower courts over what is or is not “commerce” is irrelevant to the basic question of mandated health insurance.Where government legally creates or runs a public program to serve the general welfare, the government can require citizens to participate in it and pay for it, for example by exercising the power to tax. If the “Obamacare” health reform had been legislated as a tax or contribution to a “single-payer” system, then the constitutional question would not have arisen. Unfortunately, single payer wasn’t even debated in Congress, let alone voted for or against.Alternatively, Obamacare might have decided to, and still could, offer a government-run “public option” that would be one of many choices in a health insurance “exchange basket,” which would also include qualified private insurance policies meeting reform standards. Citizens could opt for public or private coverage depending on personal preference, but everyone would have access to affordable care. The inclusion of a public option in the mix is what would place the Obamacare mandate under the authority and protection of the Constitution, while pushing down costs.There is an analogy to the automobile purchase situation mentioned above. We do not force a person to buy or drive an automobile. But if a person elects to own and drive one, we do require auto registration, plates, a driver’s license and insurance from a private company. The reason has little to do with regulation of commerce but everything to do with the safety and welfare of the public. It recognizes that the driver’s behavior is a risk and a cost to others. The unlicensed, uninsured driver is a danger to the general welfare.This may be the ultimate controlling issue in the debate over the constitutionality of the health insurance mandate: The failure of some persons to obtain health insurance is in actual practice a risk and a cost to others. The uninsured do in reality become burdens on society, and on federal, state and local, private and public institutions and programs. Although the mandate is not phrased as a tax, in real life the taxpayer is left holding the bag.The U.S. Supreme Court could go either way on this constitutional question, and probably do so by a vote of 5 to 4. It will be a sad day if the United States falls into the cellar of health care performance for its citizens. A better way to solve the problem would be to revive the original proposed public option in a basket of options, which would put an end to the constitutionality question, and more than that, would provide the most effective means of using the competition of the marketplace, combined with negotiated purchasing, to reduce the cost of health care and health insurance for all. Americans deserve nothing less.Sharon resident Anthony Piel is a former director and general legal counsel of the World Health Organization.