An Opportunity, Not a Dilemma.
Posted: January 20, 2010 Filed under: Great Issues Facing This Great Country of Ours 7 Comments
With Republican Scott Brown’s election to the Senate from Massachusetts, and the unlikelihood that health care legislation as the Democrats have written it will now pass, we have an opportunity to create a simpler and much-needed new law, arguably the law we always should have wanted. I can write it in three bullet points.
- Make it illegal for insurance companies to deny coverage to new customers based on pre-existing conditions.
- Make it illegal for insurance companies to terminate coverage of existing customers based on loss of employment or getting sick.
- Require all adults to carry health insurance for themselves and their children (for the same reason we require all drivers to carry automobile insurance—to spread out risk and reduce premiums for everyone).
There. Minus that last parenthesis, 48 words. If I can do that, why can’t Congress and President Obama? It’s not brain surgery.
A Blog of My Own 
BRAVO TED!
Right on, Ted. What is needed for starters is the simple health insurance reform you itemized. This could work. However, Number 3 is the sticking point. The federal government compelling all citizens to buy something (health insurance), or, more precisely, fining them for not doing so, would be akin to a capitation, or a direct tax, and might be interpreted as unconstitutional (see Article 1, Section 9, Clause 4), or, at best, an unacceptable and un-American abrogation of personal liberty. (Auto insurance is mandatory only for people who drive vehicles on public roads; the situation is not quite analogous.) Also, many would eschew purchasing the insurance and instead opt to pay the fine for noncompliance. Those with low or even modest incomes would not be able to afford the insurance. Subsidies for them might amount to hundreds of billions of dollars a year. Financial offsets, savings and efficiencies, as well as the social and public health benefits that accrue from universal coverage would have to be seen as compensating for the considerable cost.
Good to hear from you, Stephen. I agree with your last sentence, and my response is that the social and public health benefits accruing from universal coverage would be worth additional cost. For those with the means to bear some additional burden in the form of slightly higher premiums, it would be worth it, and for those with only partial means or no means, the cost that would have to be borne by government would be worth it. By bringing young, healthy people into the insurance system — people who would be paying in premiums more than they would be using in benefits — these additional costs could be kept to a minimum. (And perhaps further contained, or eliminated, by the savings and efficiencies you mention.) In any case, it never was the right idea to “sell” health care reform to the people on the grounds that it would be cheaper. That was a tactical error on Obama’s part. The real reason for it is that it will make us healthier and more secure. That benefit is worth something, including, if necessary, a higher percentage of our GDP than the significant chunk health care already accounts for.
“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census of Enumeration herein before directed to be taken.” Don’t see how requiring everybody to buy insurance could be interpreted as a tax. Money paid to insurance company, services received. End of story. Requiring everybody to pay a portion of their income to the government, as outlined by the regulations of Form 1040, now that’s probably a capitation, or other direct tax, no? Think?
The Constitution has become a Rorschach test for one’s own political preferences. As in, Supreme Court arbitrarily decides corporations are people, and have the same First Amendment rights. WTF? It has become impossible in this country for common sense to survive. IMHO, of course.
I would respectfully point out that the income tax, though first levied temporarily during the Civil War, was considered of such shaky legality in regard to it being a capitation that the 16th Amendment had to be passed to confirm its constitutionality. Nothing like the health insurance mandate has been tested in court and opinions as to its constitutionality vary. In the Senate it has already been contested on legal grounds by Senators Graham, Johann, Demint, and Ensign. Judge Andrew Napolitano of Fox News has condemned it. In a recent Wall Street Journal op-ed David Rivkin and Lee Casey said “a ‘tax’ that falls exclusively on anyone who is uninsured is a penalty beyond Congress’s authority. If the rule were otherwise, Congress could evade all constitutional limits by ‘taxing’ anyone who doesn’t follow an order of any kind—whether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.” But all dissent is not from Conservatives and Libertarians. Liberal Sheldon Laskin of the University of Baltimore Law School says “If Congress can compel the purchase of insurance from a for-profit insurance company, it can compel the purchase of any commodity if there is an arguable public policy to support it. … If Congress gets away with this, there is no stopping point and Big Business will have succeeded in making Americans into involuntary consumers whenever it so chooses.” Ilya Somin, law professor at George Mason University writes that “such a law would be unconstitutional under the correct interpretation of the Commerce Clause — or any interpretation that takes the constitutional text seriously.” And then there is Keith Olbermann who famously declared that he would go to jail rather than buy health insurance from an industry of which he apparently strongly disapproves. And there are also probably a good many people who are thinking “what is this country coming to that I have to pay money just for being here, not for earning anything, not for buying anything, or even for doing anything, but just for taking up space and breathing?” — I don’t necessarily agree with these opinions — my opinion is immaterial — but my point is that a health care bill with an insurance mandate, however elegantly it may seem to solve most of the inequities in health insurance, is likely to undergo serious constitutional challenges before and after passage. It shows once again how things in government seem to be simple, should be simple, but never are.
I think, Ted, you are even more brilliant than Conan O’Brien…but don’t you think you should have added a fourth bullet…able to buy health insurance across state lines…? I do agree with Stephen’s remark about things in government seem to be simple, should be simple, but never are…it seems to be like trying to get the bubbles out of contact paper – you press out one [problem] and one pops up somewhere else.
Hi Diane. Consider your fourth bullet point added! The only argument for the status quo is that states ought to have total control over their insurance industries, but if any state is doing a bangup job of reforming its insurance industry, I’m not aware of it.