Thursday, February 16, 2012

False Arguments...

An interesting argument,
but ultimately a red herring.
Listening to more arguments between others (I chose not to jump in) over not just the HHS mandate about contraception, but about the very nature of the Patient Protection and Affordable Care Act, a certain point made by the pro-centralization side struck me -- requiring people to carry medical insurance is the same as states requiring insurance car insurance.

On the surface it sounds reasonable.  But is it true?

First of all, let's remember what insurance actually is:
[T]he act, system, or business of insuring property, life, one's person, etc., against loss or harm arising in specified contingencies, as fire, accident, death, disablement, or the like, in consideration of a payment proportionate to the risk involved.
We see how that works with car insurance in both of its forms - both liability and collision protect the driver and his car in any kind of incident that especially involves another person. A clean record and being part of a lower-risk demographic will get lower premiums for that particular driver.  

Medical insurance (I don't like calling it 'health' insurance - because you can't actually insure health) used to operate in this fashion, back when it was called 'major medical'; some decades ago, the purpose of medical insurance was to provide some kind of financial protection in the case of a major injury or disability that would normally bankrupt a family.  It was most decidedly not devised to pay for routine doctor visits, regular prescriptions, and all sorts of exotic 'health care'.  But that is what it has devolved into and because of this, it can no longer be called 'insurance' in any meaningful sense.  'Coverage' is probably a better term, but even that has a similar meaning to insurance.

Nowadays, most states have requirements that drivers carry insurance (at the very least, liability; collision is usually a requirement of a lender) on their cars, and supporters of the individual mandate that is at the heart of PPACA have been insistent that since states require car insurance and it has passed constitutional muster, ergo, the individual mandate to carry medical insurance is likewise constitutional.

Think again.

The key difference between the car and medical insurance mandates (aside from the different levels of government involved) is that in the former, there is an opt-out.  In the latter, there isn't.  If you choose not to drive or own a car, you do not need to have insurance for such a purpose and will not be penalized for such a decision.  The PPACA individual mandate, on the other hand, does not allow for any kind of decision to avoid getting some kind of medical coverage.  It doesn't matter whether the person is of good health and a low risk - buy some kind of medical insurance or else pay a stiff fine.

This is the heart of the matter - whether or not the federal government can compel you to take part of economic activity, and more importantly, can they penalize you for not taking part in a certain economic activity.  The 'commerce clause' of the U.S. Constitution says that Congress has the authority to regulate interstate commerce.  That, however, implies that there is some actual commerce occurring.  If I don't buy a particular product, there is no commerce occurring and therefore nothing to regulate.  

The danger is that the Supreme Court will rule that Congress has the authority to regulate commercial inactivity, and then we will have enshrined thoughtcrime into the lawbooks of the United States of America.  What could they not compel us to buy under such a statute?  I predicted that the Supreme Court would overturn the individual mandate, but some days I am not so sure, even though this should be a slam dunk.

What I want is a cogent argument on constitutional grounds why we should be compelled to buy a particular product.  I don't expect to hear one, because if the propagators of that side are anything like President Obama, they will probably complain that the Constitution is too 'constricting' and 'outdated' to get anything done.  But then again, this has never been about access to health care.  It's about enlarging and expanding the role of the state in the lives of its citizens.  

Be careful what you wish for...

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