Thursday, March 25, 2010

Health Care Concerns: Interstate Commerce Clause

As far as I can tell, 100% of the non-spamming readers of this site have law degrees. So I need your help with these two questions: does the government really have the power to force people to buy a private insurance plan, and is a tax on the uninsured an overreaching form of discrimination?

I was listening to an interview with the Attorney General of Virginia Ken Cuccinelli on NPR the other day, and his gripes with the new health care law seemed to be well-thought-out and well-articulated (unlike his gripes with homosexuals). Ken Cuccinelli is suing the government because he believes the law is unconstitutional because it compels all citizens to buy a product from a private marketplace. And honestly, I can't immediately think of a private good or service required by all individuals, not just car-owners or house-owners or business-providers.

Another worry of mine about the health care bill is the prospect for the private insurers in the exchanges to jack up prices. They will no longer be allowed to rescind policies or deny policies to people, but as far as I can tell, there's nothing that says they have to provide a policy at a low price. And, like so many Republicans have argued, there is nothing in the health care law to control costs of medical service. So rising insurance premiums will surely keep rising without any market control method of the size that only a government could provide. This was the rationale behind the extinct public option, after all. (Hell, it's the rationale behind single payer coverage too).

It was thought to be the news in California of Anthem Blue Cross's 39% rate hike that steeled the nerves of Democratic lawmakers and helped them finally pass the health care law. But what is the method by which this new law would be able to stop rate hikes like this? Increased competition? There are many health insurers with many plans in California already. It doesn't stop them from raising rates. The market for health insurance contains too much friction for people to be able to switch insurance policies. And because of measures that strengthen employer-based health insurance policies, the health insurance market should continue to operate opaquely.

I don't like the private-insurance-only health care bill, but only time will tell if it makes the country better or worse.


Jacob said...


A quick exercise along the lines of “is a tax on the uninsured an overreaching form of discrimination?....” What if the federal government wanted the citizenry to buy hybrid cars, as well as raise revenue. It figured it could do both by writing a law that taxed people who don’t buy hybrids. Would this tax on the unhybridized be an overreaching form of discrimination? Is it really any different from our current tax scheme, which includes a tax credit for buying hybrids? Is there substantive difference between a tax penalty on those who don’t hybridize, and a tax credit for those who do? Are you OK with the part that gives a tax credit to those who buy insurance?

Anyway, constitutional jurisprudence does not look on this as a “discrimination” issue. If someone were to raise an equal protection argument, the first federal judge in sight would point out that “the uninsured” (and the unhybridized) are not a suspect class and therefore the law only needs to pass a “rational basis” test. And then the judge would laugh because everything passes the rational basis test…that’s why the rational basis test was invented.

2.Compulsion to buy private insurance plan

If you ask someone if government has the power, they’re going to bring up the commerce clause. People who believe this law to be constitutional will say that because the purchase of health insurance involves commerce, Congress has power to regulate it under the commerce clause. People who opposed this law will argue that because not purchasing insurance is specifically opting out of commerce, Congress doesn’t have power to regulate. People who support point (again) to Wickard and the farmers who were “opting out of selling their milk/wheat;” opponents counter “yeah, but they weren’t opting out of GROWING it.” Supporters bring up Raich, where the government banned growth of marijuana that had no intentions of being sold. Opponents counter, “yeah, but like Wickard, Raich was wrongly decided, anyway.” Opponents further, “beside, Lopez and Morrison proved the commerce clause has limits.” Supporters argue, “OK, but there are no examples besides those two outlining what the limits are.” This debate has happened many places on the internet already.

At the end of the day, SCOTUS has given us very few examples* of laws that didn’t involve interstate commerce. So, for now, most people assume SCOTUS will hold that practically everything does, and thus can be regulated by Congress. Opponents mainly believe that SCOTUS got it wrong in holding so few limits, and additionally hope that SCOTUS will find it in its heart to consider health care regulation to be closer to those two limits than the myriad of examples that were found not to be limited. They also hope the fact that the regulation involves purchase of something private to be distinguishing, even though SCOTUS has never distinguished it in the past (possibly because it doesn't come up often).

*The two limits? SCOTUS found that carrying a gun near a school does not affect interstate commerce and that being beaten by your husband does not affect interstate commerce.

Anonymous said...

Honestly, I find that the greatest issue - and also the least discussed - is that basic medical care is unaffordable without insurance or the government paying for it. It points to infrastructural flaws that drive up the price, flaws that nobody seems interested in correcting.

I agree, however, that it's hard to consider it discrimination - after all, the 'uninsured' are a group that are defined by an economic choice, and are therefore no more distinguishable than individuals who don't own a car.

I very much dislike the idea that the government can force you to buy health insurance. Even in cases where government forces a person to buy automobile insurance in order to drive, you can generally get away with collision insurance. Catastrophic coverage, however, seems to be all but dead with this bill's passage.

It seems like we're all being mandated to sandbag around our houses, because the dam is cracked.


Anonymous said...

A number of individuals really don't have to worry about forking over for their personal health related expenses or about buying insurance policies because they are living in states where their particular governing bodies take health care of these individuals. Nevertheless, for the rest of people, we are much better off opting into a health and fitness insurance plan, such as a group health insurance plan. However how do you get into one of these kind of policies as well as exactly what are they?

A group health policy is not really for families or single people. It is acquired by organisations who prefer to provide their important workers with health protection. For employee to opt into the company health insurance plan, the person ought to work a certain amount of period each seven days or more.

All insurance plans are different. They will come at different costs and will cover several kinds of issues. To discover out what your insurance plan particulars are, you will have to request your employer about your insurance policy, so anyone can find out how it works.

Employer health Insurance plan