What is legitimate when it comes to government action is still controversial even though we have been having this same debate for over 200 years. The current Supreme Court case regarding Obamacare is the latest to attempt to legitimize or de-legitimize a requirement that all Americans have health insurance starting in 2014.
I don't think I am alone when I say that I am not particularly impressed with the Supreme Court or its recent track record in decision-making, and therefore I don't feel this debate should be left to this panel to decide, nor is it ultimately. We have had this debate many times already and it seems that every generation needs to go through this exercise for itself. This is unfortunate because it slows progress to a crawl. Our society today should be far ahead of where it is in terms of social policy, but continuing to debate settled issues is holding us back.
It is already settled law that the government can do many things, some of which we have decided it should not do, but that it has the power to do nonetheless. The internment of Japanese citizens during WWII is a great example of a power that was adjudicated by the SCOTUS to be legitimate, but which later was viewed public opinion to be an abuse of power. That power still resides within the President, and today we are still struggling with the similar issues around ongoing detentions in Guantanamo Bay. Yet, we have decided as a nation time and time again that the government has this power and may use it when it determines the welfare of the nation requires it.
If I think about this example of extreme government power, it seems a bit ridiculous to think that the government can legitimately take innocent people from their homes to protect the public welfare but can not make people buy health insurance to protect the public welfare? How is the demonstrably unsustainable rise in healthcare costs to this country less of a threat to the public welfafre than the potential of peaceful U.S. citizens to possibly commit a future crime based solely on their race or national origin (today a protected class!)? I would argue that the unavoidable pending disaster of failing to address healthcare costs for this nation is a far bigger threat, one that is certain as opposed to a mere possibility, than the Japanese U.S. citizens ever were. And yet, Japanese internment was completely legal, if morally reprehensible. Would it be legal today considering that national origin and race are protected classes? That is doubtful in my mind, but I have no doubt that clever attorneys will argue there are other ways to classify using unprotected classifications. For example, if you couldn't intern just Japanese people, you could intern anyone who had immigrated to the country in the last 50 years, and that would pretty much get you everyone you are interested in. Then, you can just dismiss charges against individuals you like using an administrative procedure, effectively allowing you to handpick who gets relocated, detained or otherwise imprisoned without trial or any rights.
So, the government can make you do lots of things already, why should a requirement to buy insurance be so different? Today the government can require you to purchase a helmet for your bicycle, to put your child in a car seat, to sign up for the draft, to get vaccinated. How can we argue that the government can require vaccination to go to school but cannot require health insurance? A required needle in the arm and a drug in my vein, or tha of my child, is far more invasive than mere legal instructions to purchase a health plan of my choice (with, if necessary, financial assistance from the government) and a penalty if I fail to comply.
One thing that especially doesn't make any sense is the idea that the government has the power to criminalize suicide, the ultimate control over one's own health, yet could not require that same person to get insurance to provide for their health, a much lesser invasion that has many positive and virtually no negatives to the citizen, as opposed to prevented suicide which forces terminally ill patients to live in agony while bankrupting families to pay for unwanted care.
Think about it the argument being made. "The government doesn't have the power to make you buy a commercial insurance product". Our society decided that was untrue while debating auto insurance requirements. If you are a business the law requires you purchase Workers Compensation insurance. Other laws require various insurances for specific circumstances, as do many private contract provisions.
Requiring any kind of insurance policy, regardless of the sector under discussion, is clearly an appropriate role of the government. The government can determine what are minimum coverage amounts that should be in effect to protect the public welfare. The government can determine who is eligible or ineligible for coverage through statute, administration or adjudication.
What about the argument that the states, not the federal government, have the right to require health insurance. I don't really care whether the requirement comes from the state or federal government, but if given the choice, I'd say federal is better because that means that all Americans are treated equally. Moreover, when it comes to the real reason for having a health insurance mandate, we are talking about reducing costs by increasing the size of the pool. Therefore, the maximum cost savings can be achieved by requiring all American's participate, and thus the entire rationale requires total participation.
Logically, the way construction of the supremacy clause works is this: if the federal government is silent on an issue, the states may legislate differently on that issue as long as their law does not violate the constitution of their state or the United States. However, if the federal government legislates on an issue not prohibited by the Constution, then all states must conform to it. In this case, the federal government had not previously legislated in this issue and therefore states were free to legislate their own healthcare laws and mandates. Now that Obamacase is law, the states must conform.
This makes a lot of sense. There is nothing in the Constitution that prevents the federal government from imposing a healthcare plan requirement, therefore they have the power to do it.
There is no conflict with religious beliefs either. You can even purchase a plan from your local church or AAA, if they offered one. Obamacare doesn't require you buy any particular insurance brand. Better than car insurance mandates, Obamacare offers subsidies to those who cannot afford health insurance premiums. To me, this is not an infringement of any basic right of any kind, religious or otherwise, but rather this is the establishment of a system to facilitate enforcement of a basic right to have health care regardless of one's ability to pay for it.
What is the argument against this? People should be permitted to die from lack of healthcare? If that is the case, then why is suicide still illegal? It just doesn't make any sense at all. If the Supreme Court has any morality or rationality left on it, it will uphold Obamacare as constitutional and put the Republican nay-says to bed on this issue finally and forever. Ironically, the insurance mandate was originally a Republican idea - a fact that supports the argument that their opposition to Obamacare is borne more from racism than from policy differences.
The Supreme Court is not the final decider of this question. If the Supreme Court issues a ruling We don't like on this question, We the People can Amend our Constitution and overturn their ruling with a Constitutional Amendment, as we have done dozens of times before and are going to do again soon with their reckless decision in Citizens United. So, rather than argue about what the SCOTUS says or doesn't say, think about what is appropriate for a nation built on the equal value of all citizens. If the lives of all citizens are valued equally, then all citizens should have equal healthcare access and coverage to protect their lives from illness and death. If all citizens cannot afford that coverage, then the government should step in and ensure that they have it anyway. If the way to do that is by an insurance mandate for those who can afford it, then so be it. I actually think a better option is universal european-style of healthcare system, but if we are going to rely on the market approach to distributing resources, then a mandate is the only logical solution to keeping costs down. And keeping costs down is not an option, it is essential. If we don't address this issue now, healthcare costs will bankrupt this nation as the babyboomers continue to age and we will have only deeper and wider financial crises that will plunge us again into recession or worse.
