Wednesday, December 9, 2009

The fatal flaw in healthcare reform (2)

I mentioned one fatal flaw here, which is that by prohibiting insurance companies from denying insurance to people with pre-existing conditions, but failing to impose a sufficient penalty on those who refuse to buy insurance, Congress was all but ensuring the financial failure of healthcare reform. I also referenced an article that said that a healthcare mandate was unconstitutional here. Now Randy Barnett has jumped into the fray with yet more—and very compelling—reasons why a health insurance mandate is unconstitutional:


Can Congress require all Americans to buy a new Buick every year or pay a tax equivalent to the price of a used LeSabre? Some members of Congress claim that power in the health care debate. Indeed, all the leading health care bills being debated in Congress require Americans to either secure or purchase health insurance with a particular threshold of coverage, estimated to cost up to $15,000/year for a typical family. Such a purchase mandate has never been attempted. The purpose of this forced purchase, coupled with the arbitrary price ratios and controls, is to require many people to buy artificially high-priced policies to subsidize the coverage for others. Sponsors of the current bills are attempting, through the personal mandate, to keep the transfers entirely off budget or through the gimmick of unconstitutional tax penalties. The sponsors have struggled to analogize and justify the mandate under existing federal laws and court decisions, but those efforts all fail under serious scrutiny. Senator Orrin Hatch and a growing number of Congressmen argue the mandate is unconstitutional as a matter of first principles and under any reasonable reading of constitutional precedents, and it is very unlikely the Supreme Court would devise or extend current constitutional doctrines to save them.

Read the whole thing, plus this article.

8 comments:

Colin said...

The majority of what the federal government does is unconstitutional, but that has only rarely stopped them before.

j said...

In Illinois I am required to have auto liability insurance, I assume it's a requirement common to most states. Sadly, I don't think the questionable constitutionality of an insurance requirement is going to stop this runaway train.

Scott Grannis said...

Colin: I agree that most of what the feds do is unconstitutional. But it's got to stop somewhere. Healthcare may be our best chance at stopping the madness.

Scott Grannis said...

J: Same in California. But healthcare is different. The government can require you to buy liability insurance if you drive, in order to protect others from your mistakes. But forcing you to buy health insurance just because you are alive is very different. There is no way the commerce clause can be invoked when it comes to mandating health insurance.

W.E. Heasley said...

Mr. Grannis:

Excellent article. Here are some articles to back up your position:



http://thelastembassy.blogspot.com/2009/10/fun-and-games-with-preexisting.html

http://thelastembassy.blogspot.com/2009/11/schemes-unintended-consequences.html

Public Library said...
This comment has been removed by the author.
Public Library said...

Colin,

You are exactly right. America engages in silly debates that dwarf the size of the misdeeds done by the Fed.

Follow the money trail and you will reach the source of our ailments. We should be focused on dismantling the Fed and the faux capitalism setup by the banks.

Bill said...

I would not rely on the Courts to do the right thing and strike this unconstitutional foolishness down. They are just as politicized as the rest of the branches of the government. The oaths of the Judges to defend the Constitution are taken just as seriously in most cases as are the same oaths taken by Democrat Congressmen.