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Does the Constitution Make You a Cash Cow?

Tuesday, November 15, 2011

Nowhere in any of the cases on ObamaCare does there seem to be a serious argument that the individual mandate is an intolerable intrusion on economic liberty.

Susan Seven-Sky v. Holder, the D.C. Circuit Court opinion earlier this month upholding the individual mandate in ObamaCare, took the path of brutal candor. If any limits on congressional power exist, they are invisible to the naked eye, and the activity/inactivity distinction that the law’s opponents are pushing does not stand up against the precedents of Wickard, Raich, and Heart of Atlanta, all of which regulated activities with only tenuous links to interstate commerce.

An interesting dimension of the case received no attention, though. The government’s requiring an individual to purchase health insurance is based on two rationales. The first is that we are a soft-hearted people, so when someone needs healthcare, we want to provide it, even if the person has no insurance. The court’s opinion put the price of this compassion at $43 billion per year, which is shifted to others in the system since the health industry must cover the cost somehow.

The second rationale is that the law’s subsidy and special interest provisions, such as community ratings and coverage of pre-existing conditions, cannot work unless we force the healthy young to subsidize the sick by joining the system and paying premiums that exceed the young’s actual demand on the resources.

Forcing someone to buy insurance so they can serve as a cash cow for favored interests is another thing entirely.

The two rationales present different moral and constitutional issues. Forcing someone to buy insurance because we are soft-hearted might be a trivial imposition, if the mandate were to buy a policy tailored to his/her own circumstances, as offered by a company operating in a free market. Forcing someone to buy insurance so they can serve as a cash cow for favored interests is another thing entirely.

Conservatives usually have sport with Justice William O. Douglas’s 1965 opinion in Griswold v. Connecticut “that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” He found emanations from the First, Third, Fourth, Fifth, and Ninth Amendments that invalidated Connecticut’s ban on contraceptive devices.

Actually, Douglas had an arresting point, though perhaps better cast in terms of Venn diagrams than penumbras and emanations. But if the specific amendments are emanating, let us count how many of these irradiate a “you are a cash cow” mandate:

First (Freedom of association should extend to commercial associations)

Third (Quartering troops–the principle is no imposition on one person of burdens that should be shared. Besides, if Douglas can use it, so can I.)

Fifth (Takings cases specifically say that burdens that should be borne by the community as a whole should not be put on one person–why is subsidizing the sick not something to be borne by the whole community?)

Ninth (Rights retained by the people)

Tenth (Federal government has no power not delegated to it by the Constitution)

Thirteenth (No involuntary servitude)

Fourteenth (Privileges, immunities, and due process of law)

That is a lot of emanations, which makes it a bit depressing that nowhere in any of the cases on ObamaCare does there seem to be a serious argument that the individual mandate is an intolerable intrusion on economic liberty, imposed for the benefit of whichever interests capture the healthcare regulators.

James V. DeLong is the vice president of the Convergence Law Institute. He is working on an e-book called Ending Big Sis (the Special Interest State) & Renewing the American Republic.

FURTHER READING: DeLong also writes “The Compassion Trap.” John Hoff and John E. Calfee describe “The Contradictions of ObamaCare.” Thomas P. Miller contributes “Taking the Individual Mandate Off Life Support.” Ryan Lirette asks “Will the Individual Mandate Hold up in Court?

Image by Darren Wamboldt/Bergman Group.

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