The Health Care Issue: A Public Defender’s Take

This is from Patrick Hare, a longtime reader of this blog, who is a Public Defender. I clip the opening paragraphs:

Guess how many states have laws that REQUIRE citizens TO BUY insurance? FIFTY.  That’s right, folks.  Every single one of them.   Red states as well as Blue states.  Require.  Citizens.  To Buy.  Insurance.  To be more specific, every single state requires citizens who drive motor vehicles to buy liability insurance to cover any damage they might inflict.

Now of course this law doesn’t apply to everyone.  There are two primary classes of people who do not have to buy automobile liability insurance.  Those who don’t drive. And those can prove financial responsiblity to cover any damage they might cause up to a certain limit.

The rationale behind these laws REQUIRING citizens TO BUY liability insurance is simple.  There is a significant risk that anyone who drives a motor vehicle may, over the course of their lifetime, cause an accident which causes damage to the property or bodies of others.  There is a strong societal interest in making sure that those so injured can be compensated for their losses. You cannot buy insurance to cover an injury after you cause it. You have to have the insurance ahead of time.  The insurance covers the damages caused by negligent drivers.  Of course, this cost is paid for by all of the non-negligent drivers who pay their premiums every month without causing any damage.  Hence, the requirement that ALL drivers, negligent as well as careful, carry liability insurance.

Those of us who live on planet earth are also at significant risk of needing medical treatment at some point in our lives.  We may contract, carry or transmit a disease, be injured as the result of an accident, or develop some other illness or chronic condition – sometimes the result of our own choices, sometimes not.  There is a strong societal interest in making sure that those who need medical treatment can afford treatment for those illnesses.  There is also a strong societal interest in making sure that those who provide medical treatment are compensated for having done so.

Health insurance, like any other form of insurance, only works if there is a shared assumption of the risk.  Insurance companies rely on actuarial tables to assess the risk and base their rates accordingly (after factoring in a healthy profit of course). Healthy people have to pay into the program so that sick people are covered. Previously, insurance companies could refuse coverage or charge significantly higher rates for people with pre-existing medical conditions.  The current legislation seeks to prevent that by spreading the risk around to all citizens.

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  • Just Sayin’

    Funny how so many other countries discovered all that several decades ago.

  • I think there is a correlation here. Of course I’m on record being for universal health coverage in the United States, so my perspective is different than many of my good friends.

  • CGC

    Hi Everyone,
    I do get the logic of the argument and even understand why this may be neccesary for affordable health care to work succesfully. I also get the consistency of the logic applied here. But two problems or issues others are going to bring up are: (1) what the federal government does under the constitution and what states do can and do function differently (which is my quess how Romney will probably argue why he was for health care in his own state but against the current federal plan); and (2) There is the concern that this case could become a precedent on forcing all kinds of things on people in ways that are extreme in the end even though I don’t believe health care itself is an extreme.

  • EricW

    My biggest objection to the Patient Protection and Affordable Care Act is how it was passed and/or seemingly unilaterally shoved through Congress by the Democrats and the Administration, with their “We have to pass it to know what’s in it” and “No, we haven’t read the bill yet” responses to specific questions – questions which could have shown that the numbers were fudged and/or lied about, and that the expected cost may be much, much higher than we were told.

    I.e., not the principle of required-by-law universal healthcare but the manner in which it was enacted.

  • Joe Canner

    I made this very same argument on a Facebook discussion recently. As CGC #3 pointed out, I think the only truly thorny legal issue is whether the federal government has the right to do this instead of the states. Throughout our history there have been plenty of issues (usually involving human rights issues) where the federal government has been allowed to override the states. Perhaps one of the legal experts in the JC community can explain why the just distribution of health care (and health care costs) would not be a federal concern.

  • Jim

    Of course, there are a lot of legal issues not covered here and almost too complex for most of us to follow. (Interestingly, the whole debate involves a lot of issues about insurance, etc. that the Justices did not seem to follow.)

    But at the core of the issue is exactly what Mr. Hare suggest. Do we have any sense of common good/solidarity with others in this country or not? I don’t mind paying taxes so that we all can drive on streets or so that everyone is protected by the local fire department. I certainly don’t mind paying taxes so that everyone has health coverage.

    The mistake made by Obama is that he followed earlier Republican ideas and insisted on the free market notion of private, for-profit insurance and not a Medicare For All type system (which would have meant a tax).

  • I appreciate the tone this article takes for an issue that is usually so “hot”. It brings me to a question I don’t usually see raised when this argument is made; States require a minimum amount of auto insurance for drivers so that everyone can afford basic coverage, why is there not more discussion about a required catastrophic level of health insurance, leaving other levels of insurance up to the discretion of the individual?

    It seems to me that the current debate seems about providing nothing for anyone vs.requiring everything for everyone.

  • Jon

    How many states prohibit people under age 16 from having auto insurance? 50. That’s right. 50.

    I would guess around 50% of the US population doesn’t have (and isn’t forced to buy) auto insurance.

  • TJJ

    This has almost nothingto do with Obamacare and is a perfect example of confusing the legal issues inherent in Obamacare and in so doing obscuring the real issues.

    I am an attorney to who does plaintiff insurance work. And state insurance liability laws, or even state heath insurance laws, are not at issue at all in Obamacare. The issue of Obamacare is federal law mandating insurance, and federal takeover of. Healthcare. States have always had this power under the constitution, but federal power under the constitution is limited and defined and proscribed. No one is saying, or has ever said, states can’t enact heathcare legislation, just as they do insurance liability laws. States have that power.

    The issue is does the federal government in DC have that power to enact such laws that legally bind/compel States and citizens of each state, under the constitution.

  • mark

    Another attorney here. This auto insurance analogy is not new to the Obamacare argument, but it is faulty. Two simple reasons (very simply put): 1) states are different from the Federal government as previously stated; and 2) there is no right to drive a car without government permission, and that permission can require a license and insurance.

  • Joe Canner

    Jon #8: What’s your point? Everyone who drives is required to have auto insurance because they are at risk of an accident. Everyone who is alive is at risk of requiring health care.

    TJJ #9: Can you elaborate on your statement: “federal power under the constitution is limited and defined and proscribed”? What are these limits and what is it about requiring health insurance that exceed these limits?

  • Joe Canner

    mark #10: I’m really trying hard to understand this. Can you elaborate on #1 (see my question to TJJ in my previous post)?

    As for your #2, are you saying that the government can only regulate things that it is already regulating? That sounds like a circular argument. What gives governments the right to issue driver’s licenses and car registrations in the first place?

  • In my own lifetime, medical care has gone from where most people went to a family doctor, who charged as little as he could, knowing most people had tight budgets. As I recall, he mostly worked alone, with a receptionist at the front desk, so his overhead was low. Our family was billed once a month and paid however much they could afford toward the balance.

    Now the doctors say it is nearly impossible to afford a one person practice, in part because they have to employ extra people just to keep on top of all the insurance billings. The do bill the patients for amounts not covered by insurance, but expect that amount to be paid promptly, or it will be turned over to collections. It is very rare to find one who tries to keep fees low, instead, they charge the most they can get away with, in order to maximize the insurance payout, and have enough left over to pay the office staff.

    That brings us to the insurance itself, which started as Major Medical, which only paid if you had a long term illness or required surgery. Then it was expanded, though often the things that are truly preventative, like inoculations or check-ups, are not covered (at least past infancy). Meanwhile the cost of the insurance has ballooned to the point that employers have started requiring the employee to pay a portion of the premiums, even beyond the already high cost of covering dependents. We already had copays, and recently they have added a deductable to our coverage. Our total costs out of pocket are now approaching 10% of our income. We can manage, since we are middle class, but I shudder to think how it would be if we were living on a salary like my parents did. Where do they think people on the bottom are going to come up with thousands of dollars for insurance?

    That brings me to another point. The states do mandate that people have car insurance, but enforcement is a nightmare. People will chance driving unlicensed simply because they cannot afford the insurance. Car insurance costs a lot less than medical insurance, so the problem of the uninsured and underinsured would only be worse for medical insurance.

  • Fish

    Those of us who live in Tea Party states depend on the federal government for protection. I could not care less about state’s rights. My state and its backward conservatism is an obstacle to my life, liberty and pursuit of happiness. Without the federal government, here in Arkansas we’d still have segregated schools, the birth control pill would be illegal and we’d be bankrupt. In a perfect libertarian world, I could move to Massachusetts, but I live in the real world.

  • PaulE

    Besides the state vs fed issue that people have already mentioned, I’d add a couple more reasons I think the analogy to auto insurance breaks down:

    – Auto insurance premiums rise for negligent drivers, and at some point insurance companies will refuse to insure a driver. With the health care law, premiums generally cannot reflect pre-existing conditions and companies are required to insure everyone.

    – Auto insurance requirements are limited to liability, and the societal interest is justice in making sure no individual is bankrupted because of someone else’s risky behavior. With health insurance, nobody is in danger of being bankrupted because some stranger isn’t carrying insurance.

    I think a perhaps better analogy to mandatory health insurance is compulsory education. This fits the broad concern for society that Patrick Hare expresses above: everyone benefits from an educated society just as everyone benefits from a healthy one. Although, I believe again here that compulsory education is at the state level in the US (though, I think the President has at one point proposed a federal mandate).

  • Amos Paul

    Wow. What a surprisingly sloppy argument from a lawyer. There is a VAST difference between being required to buy insurance for the use of some governmental privilege such as legally driving upon the roads vs being required by virtue to purchase something by virtue being a citizen. The mandate is flat out unconstitutional, there is no question about it.

    Moreover, people who support the mandate have yet to argue why the United States moving into a required health insurance with an arcane mixture between employer and governmental offsets towards the cost is somehow a ‘single payer’ universal healthcare system. It most demonstrably is NOT. A single payer system is where a single payer provides for public healthcare directly with taxes, not 3rd person through insurance mandates/cartel regulation.

    Furthermore, MOST of the successful countries with things like single payer systems are incredibly decentralized (like Canada). This sort of thing has NEVER been tried at the size/scale/diversity of the United States before, let alone at the scale of many of our states.

    For example. Switzerland, arguably one of the most successful more socialist governments, is incredibly de-centralized to the point where each of ther very small 26 cantons retains almost complete sovereignty and is responsbile for its own healthcare, etc.

  • MWK

    Another attorney here. Like the other attorney posters, I’m equally surprised at how much the original post misses the issue at play here.

    Joe Canner – there’s not enough room here to explain all of the intricacies of the constitutional issues at stake, but the principal is this: the constitution specifically limits the power of the federal government, and gives all other governing powers to the states.

    One of the issues before the SCOTUS is whether the individual mandate reaches beyond the power that is afforded the federal government in the constitution, specifically within the commerce clause. There are arguments for and against. That’s the gist, but the commerce clause cases usually drive 1st and 2nd year law students crazy due to their complexity. At least they did me back in the day.

  • Joe Canner

    Amos #16: I think most liberals would rather have a single-payer system, but are stuck with the mandate as a compromise. The only people who *like* the mandate are Republicans, although none of them would dare admit that anymore.

  • Rob

    #9 and #10,

    I am no legal scholar, but I agree federalism questions are in play here…but are you suggesting that the risk of over-reaching federalism is the primary objection to Obamacare? Or is it just the legal justification for the opposition? I am suspicious it is the latter. If the former, wouldn’t opponents of Obamacare praise Romney and Massachusetts for exercising the state power to provide healthcare to the uninsured in their state or at least not attack him for it? I am sure there are some Obamacare opponents who do stand on the principle of states’ rights and have no beef with Romney for RomneyCare, but are they the majority? If so, I haven’t heard much from them…but maybe that is the media’s fault ;).

  • Joe Canner

    MWK #17: Now I know how young-earth creationists and climate change deniers feel when told they should trust the scientists… 🙂

  • T

    The analogy is helpful, but yes, it’s limited. On the issue of state powers being different in scope from Federal powers, this is true. Much could be said here, but in sum, the federal government only has the powers that are specifically “enumerated” in the Constitution. In this case, Congress is saying that the “commerce clause” gives them the power to regulate health care. The commerce clause has been interpreted very broadly by the supreme court ever since the 1940’s to allow the federal government the power to regulate anything that affects interstate commerce (commerce that crosses state lines). Readers here should note that commerce does not need to actually cross state lines to *affect* interstate commerce under existing case law. There are historically very few practical limits to Congress’ power to regulate under the commerce clause, especially when it is genuinely attempting to regulate actual commerce (and not, say, individual possession of weapons that might *affect* interstate commerce).

    Now, Congress has never, to my knowledge, required anyone to purchase something under this power before. That does make this case unique on one level. However, it’s also going to be hard to argue that the health industry does not affect interstate commerce. Further still, there’s no question that Congress would have the power to simply create truly nationalized insurance for all through their separate “tax and spend” power: similar to Medicare but for everyone instead of just the old. That is significant because voters should understand that Congress could have been far more hands on than it has been, and there would have been no constitutional obstacle at all.

  • Jeff

    How about real world data: how has the federal government done with managing “single premium” health care insurance through the Medicare & Medicaid Programs? It’s been an abyssmal failure, so what actual evidence would suggest that they can manage a “national” health care system?

  • Tom F.

    Would really love to find one person who objects to Obamacare on federalism ground but loves Romneycare because it solves the problem on the state level. #19’s point is dead on here.

    I think the only person in that category might be Mitt Romney himself.

    Would anybody go on record saying Romneycare is at least an okay idea, but Obamacare is bad only on federal grounds? It doesn’t seem like such a category of person really exists.

  • T

    Jeff (22),

    There’s some fair criticism to lay at the feet of Medicare and Medicaid administration, and I’d say the same about private insurance.

    Further, Medicare and Medicaid are actually Federally funded and managed insurers. That’s not what Obamacare creates. It’s still private insurance companies in the market. Further still, I’ve seen Medicaid provide tremendously helpful long term care benefits to the poor and disabled. There are millions of old, disabled and poor folks who have received nursing home benefits from Medicaid that they otherwise couldn’t afford, not to mention health care for poor children. Were those benefits an abysmal failure? Would it have been better to let them fend for themselves? I think we need to put “abysmal failure” in perspective, particularly in light of alternatives.

  • DRT

    For all of you crying out about only the states having this ability….

    The trouble is I don’t see anyone standing up and saying that we need a law specifically for this so we cover our poor. I think the argument about the fed not having this right is simply smoke screen so conserves don’t have to cover poor people. Otherwise they would propose solutions to the problem instead of total repeal.

    Why don’t the republicans help craft some legislation or an amendment so we can safely have universal health care? The constitution is not written by god folks.

  • Agree with those who noted the Constitution calls for far more restrictive rights on the federal govt cmp to the states.

    @TomF: “Would anybody go on record saying Romneycare is at least an okay idea, but Obamacare is bad only on federal grounds? It doesn’t seem like such a category of person really exists.”

    Whether one thinks the govt should or should not provide health care (a debate in itself), does anyone have data as to whether RomneyCare is financially sustainable/viable? Does anyone have data on overall health care provided in MA since it passed?

    @T: “There are millions of old, disabled and poor folks who have received nursing home benefits from Medicaid that they otherwise couldn’t afford, not to mention health care for poor children. Were those benefits an abysmal failure?”

    It is not the care here that is considered the failure, but the fact that it is provided by a financially insolvent system that is going to drive up debt from most of the data I have seen projected. And the passing of the Buffet Rule is not going to solve that problem.

  • I am a lawyer as well and, as such, I know there was a time when we differentiated between federal action and state action. I have been blogging through the Constitution using Madison’s notes on the debate and Joseph Story’s commentary and it is clear to me that the Founders would have nothing to say about a state requiring such insurance but much to say about the federal government making such a demand.

  • Jeremy

    His whole argument is turned on its side when he uses the phrase “we may…” We may get sick and need insurance, but we don’t have to get sick and need insurance. What Patrick says makes overall sense, but it is unconstitutional. The government has the responsibility of regulating trade, but it can’t force anyone to buy anything private that they don’t want.

  • DRT

    Jeremy, so offer a solution that will allow them to insure everyone and spread the risk around. Or don’t you want to have everyone covered?

  • Amos Paul

    Tom F,

    I am opposed to Romney care and Obama care for overlapping but primarily different reasons. Basically, while being a conservative (limited) libertarian myself, I am OKAY with de-centralized single payer healthcare. I’m also OKAY with properly instituted free market healthcare as it generally keeps costs down so that healthcare is cheaper and easier to attain.

    To be honest, I would love it if the states somehow had competing systems amongst these categories in order to demonstrate the practical superiorities of each. But, alas, what we have and have had is neither nor concerning the above options. It’s an ass backwards system of over regulating healthcare and insurance driving up costs of both while ‘shifting’ the burden of paying for increased costs that actually hurt both the government and economy!

    Phew. I don’t like it. The only people that win with our current setup is big pharma and big insurance, not the people. Also, I object to the federal scope of Obamacare on both constitutional AND practical grounds, as I argued earlier.

  • Amos Paul

    *shifting the burden of paying for increased costs IN WAYS that actually hurt both the government and economy

    Typo correction.

  • DRT

    …one more from my soapbox….

    We need to articulate the problem. Is the problem that people are not insured and that they get dropped? If we could agree on that problem then we could find a solution.

    To all of those who want to flog Obamacare, do you want to cover the poor and uninsured and spread the risk over everyone?

  • T

    Mike B,

    In that case, you’re not saying the programs are failures, but that we have a budgeting failure which is a problem for all government spending, not just providing health care to the poor and disabled. Agreed. And no, the Buffet Rule alone won’t fix it. Repealing the Bush cuts or something similar would be a step in the right direction. It’s not like businesses were suffocating under Clinton by any stretch of the imagination. When Repubs can admit we had a functional economy (with surpluses!) before the Bush cuts, and we need both tax hikes and spending cuts now (and not just in social programs), then I’ll consider voting for them again.

    On the Constitutional issue, let’s keep the big picture in mind: Congress has the power to take money from all and buy /provide insurance for all. It has this as part of it’s taxing and spending power. So even if the Court says that Congress doesn’t have the power to tell citizens to buy insurance under the commerce clause, Congress does have the power to take the money and then spend it however it wants, on insurance or otherwise, with whatever additional inefficiencies it creates by taking the money into its possession as middle man.

    I feel like too many fail to realize that Congress, unquestionably, has this arguably greater power, which it has already used for Medicare for instance. It makes the cries of “Unconstitutional!” seem more borne out of convenience or ignorance than genuine concern of constitutional offense.

  • Amos Paul


    Come on. You know for a fact that the reason people aren’t worried about the *greater* power is because it’s even more difficult to get passed than the arcane mixture of nonsense that ‘Obamacare’ is. Indeed, Obamacare is little more than evolution of the self-same system we already had + more regulations + an insurance mandate.

    And don’t tell me that Clinton handled the budget well when he raised the debt ceiling 4 times and borrowed against social security. ‘Surplus’.

  • Amos Paul

    ^ And I should note, *neither* direct provision healthcare nor Obama-style regulation is constitutional at the federal level. If it’s not ennumerated, it’s not Constitutional. I don’t care what politicians have been able to bend over backwards rationalizing today. It’s clear as day that healthcare is not enumerated (at this time).

    And people need to stop making this about republicans and democrats. I’m one of those independent nutcases that calls them republicrats. This issue is bigger than Red vs Blue.

  • mark

    Joe #12 – “Everyone who drives is required to have auto insurance because they are at risk of an accident. Everyone who is alive is at risk of requiring health care.”

    This may have already been answered, but the difference is that auto insurance is to protect others from you wielding a 2-4K pound piece of metal at 60mph (insurance to protect your collision loss is not required, at least in IL), while health insurance is to protect you from death or bankruptcy if you get sick.

    I suppose one could say health insur. protects the doctors from not being paid or protects the taxpayers from footing the bill due to required hospital treatment under the law, but this latter protection becomes necessary from government interaction in the first place. So perhaps the concern is that the more government gets involved, the more the government needs to get involved from there on out. I also don’t live in MA so I don’t know anything about Romneycare, except that I don’t want the Feds doing it. Actually I also know I don’t want IL or even Cook County doing it.

    I also know my insurance jumped 30% in 2011, forcing me from my PPO to an HMO, as a result (per the insurance people) only due to Obamacare.

    I thought this was a discussion about the bad analogy.

  • John

    This post wouldn’t pass Government 101.

    The key difference is, as has been stated many times already, the differences outlined in the Constitution betweens states and the Federal Government. The Founding Fathers felt that the states could be easier to control than the Federal Government. Those who are saying that it is a lack of caring are just trying to brand those who disagree with them. The Consitution has outlined ways to change it – if you don’t like the limits on the Federal Governement, then we can change it. Until then, it stands as the law of our land.

    The other hole, in this bill, are that it says healthcare is needed by all – a truth. However, that is separate from saying insurance should be mandatory. I am for Universal Healthcare – just think the gov’t should set up clinics for those who can’t afford it rather than set-up some middleman insurance.

    I did see an interesting discussion about whether it would have been more “Constitutional” to set it up like a tax (think Social Security). The experts seem to think that legally it was more solid, but that the administration closed that door because they don’t want to defend a tax increase of that size.

  • DRT

    Amos Paul, saying the the constitution did not address universal health care is like saying the bible did not address keeping people alive via machines. It simply was not a consideration.

    Now that it is, how do you suggest we modify things so we can insure everyone?

  • T


    On the constitutional issue, I understand that you think the constitution should have been interpreted differently over the years. I think so myself on several issues. But in this discussion, when I say something is constitutional, I’m speaking about what is constitutional *as the Supreme Court has actually interpreted it,* not what is constitutional as if I was charged with interpreting it for the country. According to the former, direct taxing and spending for health care is constitutional without question (hence Medicare). Please understand, I sympathize with what you think *should* be constitutional. But too many people are saying “That’s unconstitutional!” when what they mean is that they don’t think it should be. It results in some folks actually thinking that the kind of taxing and spending I’ve described here is unconstitutional in actual fact. Ignorance won’t help the conversation.

    On what is politically feasible, we’ll see. I certainly don’t know for a fact what will be politically feasible or likely a year from now, let alone 5 or 10 years from now. I wouldn’t have thought many things could be sold politically that are old hat now. Political winds are fickle because people are fickle.

    I’m not saying Clinton was a saint, even fiscally. I’m saying that I have no respect for my own Republican party when they refuse to admit that tax hikes (even to put them back where they were pre-Bush), are going to be necessary to deal with our fiscal problems.

  • @T/DRT

    I think the problem can be broken down as follows:

    1) Can the federal govt provide health insurance to all citizens?
    – I think this goes beyond the powers the founding fathers would have envisioned the federal govt having. And the history behind passing the social safety nets demonstrate that there were Constitutional questions raised along the way. (see FDR and packing the court)

    2) Should the federal govt (assuming it can) provide health insurance to all citizens?
    – I think there can be debate here about the role of govt and whether this is something it should provide to its citizens.

    3) How should the federal govt (assuming it can and should) provide health insurance to all citizens?
    – the current systems are unsustainable. Real debate should be how it could really work. Maybe the govt can provide “health care credits (like foodstamps) to those making under some $ amount” to buy it from the private market or have a federal system etc.

    4) How much health insurance should the federal govt (assuming it can and should) provide to all citizens?
    – is there a bare minimum coverage for emergencies or should everyone have a “cadillac” plan?

    As for the Clinton surplus myth, this article is a good read on the numbers.

    “When it is claimed that Clinton paid down the national debt, … the national debt went up every single year. What Clinton did do was pay down the public debt… But he paid down the public debt by borrowing far more money in the form of intragovernmental holdings (mostly Social Security).”


  • Joe Canner

    mark #36: Good point about the difference between car insurance and health insurance. However, you basically answered your own question with reference to the societal costs of treated the uninsured. This is really the crux of the issue. Certainly, not requiring hospitals to treat the uninsured is an option. Is that really the direction we want to go as a society?

  • Tom F.

    Amos, I stand corrected. There is at least you and Mitt Romney who are at least okay with the idea. Good luck to both of you as you try and explain the distinction to the rest of the conservatives. 🙂

    Mike B, it seems that there are two ways to suggest that the government “should” not provide health care. One is to say that it is pragmatically or philosophically a bad idea. The recourse here is legislative: that is, you try and elect lawmakers who agree with you.

    The second is to say that the US government “should” not provide health care because it is unconstitutional. The recourse here is judicial: that is, you go argue before the supreme court that it goes against the constitution.

    The key here is that if most conservatives were really motivated by a clearly separate sense that the law was unconstitutional, there would be a significant number of them who argued that it was an okay idea at the state level, but not at the federal level. And yet no conservatives like this (besides Amos and pre-election Romney) will actually say this.

  • I actually would like to revise my post in #39

    The term “health insurance” in each question should read “health care”. That is the real crux of the matter. Insurance is just a way of managing it today.

    1) Can the federal govt provide health care to all citizens?
    2) Should federal govt provide health care to all citizens?
    3) How should federal govt provide health care to all citizens?
    4) How much health care should federal govt provide to all citizens?

  • Amos Paul


    I am a not a legal positivist, so I have no philosophical nor terminological constraints in saying that spending money on healthcare beyond, say, those employed by the government is not constitutional. Indeed, it is the job of government officials to never violate the constitution–even if those on ruling power make laws contradictory to the constitution.

    I’m not even saying we eliminate Medicare. But I am saying that it is logically without question unconstitutional as per the constitution and any headway we make should not be to further that system.


    You may see some of my previous comments as per what kinds of healthcare options I prefer. I’ve made both practical and constitutional arguments against the current system. However, assuming that you want the federal government to take care of healthcare anyway, the only actually constitutional option you have is to amend the constitution–an option that has become less and less popular ever since the political elite have decided to go ahead and pass laws at the federal level regardless of what the constitution actually says.

    If you (theoretical ‘you’ here), you’re other constitutional option is to channel all the political power and money into the states to establish local healthcare reform. Though that’s not what the corporations are paying politicians to do. Neither does big pharma and insurance actually want their dollars behind any genuinely free market or single payer systems–both of which I support.

  • TomF

    “And yet no conservatives like this (besides Amos and pre-election Romney) will actually say this.”

    why do we need to talk about what “conservatives” or “liberals” think.

    That said, why would this not be what a consistent conservative position *could* be:

    1. the Constitution does not allow the federal govt to provide health care
    2. the Constitution does allow state govts to provide health care
    3. I don’t think the role of govt requires it to provide universal health care, nor is there a financially sound way to do so. Therefore I will vote for those who agree with this position in my state.

  • cw

    I’ve been a healthcare provider for over 30 yrs. I’ve seen the results of a system supported or driven largely by the Federal government. (Mammoth insurance companies are not much better.) Our current way of providing medical care and all that includes is not sustainable for the long term. I have yet to see anyone address in a rational and reasonable manner some of the things that must be changed: tort reform, physician compensation, personal responsibility for lifestyle choices, end-of-life medical care, etc. Obamacare is not the solution but is anyone working on an alternative plan or just hoping to defeat the current legislation? In my most pessimistic moments, I really wonder if there will be accessible and high quality health care when I’m retirement age.

  • DRT

    Here is an interesting side game going on with all of this. It does seem that insurance, where people pool risk, is going to have more and more difficulty in the future.

    But, we can’t argue that we deserve coverage because we live in North Carolina, just move.

    We can’t move away from our medical condition.

  • DRT

    Amos Paul,

    You said to T “Indeed, it is the job of government officials to never violate the constitution”

    While I agree that we need to make sure that the constitution in upheld, I view the job of the President and the government officials to be to give us the best government that can be had. If that requires the constitution to change, or there to be a ruling on a debatable issue to benefit the greater good, then so be it!

    The “government officials” should be figuring out the best way to help us all
    ! Just because it is being challenged does not mean it is wrong, it actually is good.

  • DRT

    …I touched on the following in my last post….

    I get the sense from the rationers that they feel there is something wrong, like morally wrong, with pushing the limits on the constitution to make things better for us. There is nothing morally wrong with that. Even if it is declared unconstitutional there is nothing morally wrong with that. They should be pushing the limits.

  • Patrick Hare

    Thanks all for the lively and gracious vigorous discussion so characteristic of the Jesus Creed community. I appreciate the critique by many about the powers issue – federal vs. state. That is not the thrust of my editorial, however. Rather, I am seeking to narrowly address the libertarian argument that NO government has the right to require citizens to purchase anything. Contra TJJ’s assertion (#9), there are many folks who argue that states have no right to “force citizens to buy” health insurance. Hence, the aggressive critique of Romney for enacting similar legislation in Massachusetts requiring citizens to purchase insurance. The vast majority of states do not have this sort of comprehensive health care approach. Whether or not it is determined to be “constitutional” for the federal government to step into the vacuum will be decided by the Supreme Court.

  • Amos Paul

    Meant to say if ‘you’ want to push healthcare outside of a constitutional amendment, above, when I asserted channeling political energy and money into sate healthcare plans.

    And I challenge any federal level healthcare supporters to provide examples of successful government healthcare plans that are not either on a small scale, incredibly de-centralized, or both. I don’t think any exist. There is no good reason not to fight for healthcare reform, if you wish, at the state level which is the equivalent to any other governmental healthcare sized system in the world. Federal legislation has *proven* itself to do little more but drive up the costs of healthcare and hurt the economy (minus the big corporations that benefit).

    Also, DRT. Regardless of what you would LIKE politicians to do, and regardless of what they actually *do* do–they all take oaths of office to uphold the constitution. And I don’t think our country’s problem is the constitution. I think our country’s problem has been *not* following the constitution–as well as morally corrupt governance, of course.

  • TJJ

    Jo canner # 11

    The federal govt only has powers that are enumerated/granted to it under the US Constitution, all others powers not so enumerated/granted reside with the States.

    Constitution does grant Fed Govt to regulate interstate commerce. Obamacare believes commerce clause grants federal power to mandate States and citizens to comply with Obamacare requirements. Approx 26 states have sued, claiming that Fed Govt does not have this power.

    Also, driving a vehicle is a privilege, not a right, so States can/do regulate it, even to the point of taking a person’s privilege away for certain violations of State law. So comparing to health insurance is really comparing apples/oranges.

  • Holdon

    Locke: “Civil interest I call life, liberty, health, and indolency of body; and the possession of outward things…”

    Declaration of Independence:
    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

    It seems clear both from derivation (Locke) and from the intrinsic meaning of the word “happiness” that “pursuit of Happiness” includes “health and indolency of body”.

    As the Declaration provides the Ideal for the US society, the Constitution is the program to reach that goal, and the Federal Government is responsible of carrying that out to the benefit of the US society, it seems that the Federal Government should do all it can to protect, preserve and provide “health and indolency of body” of its citizens.

    The Federal Government is (FDA, USDA, etc.) and should be in the business of health for its citizens. Therefore it has the right, power and obligation to make healthcare within the reach of all its citizens.

    To do so rightly means to determine the minimum and maximum scope of the provisions of healthcare (not all interventions may need to be covered), and how the burden can be minimized (in order to ensure that it be in everyone’s reach, be regulating all providers)and maximally be laid to the responsibility of each citizen because of factors within their control.

    There you have it.

  • Patrick Hare

    TJJ – You argue the comparison is apples and oranges because of a purported distinction between privileges and rights. I’m aware of that argument – I just don’t find it persuasive.
    The government has the power to regulate both of those. You say driving is a privilege because the state can take it away for certain violations of state law. Liberty, on the other hand, is a fundamental right, but the government can also take away your liberty for certain violations of the law. Likewise voting. Driving is often considered to be a “privilege”, but as long as you’re over a certain age, pass a test and meet certain vision/hearing/medical requirements, the state cannot deny you the privilege. Is something as fundamental as marriage a right or a privilege? Presumably a “right” (?) but look at the mess we’re in over who can and can’t get married to whom. Again, the distinction doesn’t end up being very helpful.
    Indeed, the Fourteenth Amendment states:
    “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
    Privileges in the Fourteenth Amendment sound an awful lot like rights. Ultimately, the purported distinction doesn’t hold up for the purposes it’s meant to serve.
    How do you like them apples? 😉

  • T


    As a practicing lawyer, I’m not shooting for legal positivism so much as realism (and avoiding misleading others) when discussing what is constitutional or lawful. I’m not at all adverse to saying that I think the SCOTUS got this or that case or issue wrong, but according to the constitution itself, the federal courts get to rule on what is actually constitutional. Again, I seriously sympathize with the conviction that the Courts got this or that wrong (even the “switch in time that saved nine” could have been much less extreme than it was IMO, but it is done and now well settled law). But it’s better for conversation to say, for example, “Even though this or that is within the Feds’ authority under well settled case law, I think the court got it wrong there” rather than say or imply that something is unconstitutional when the courts have long ruled the opposite. For example, call abortion wrong, but why say that laws flatly banning it are constitutional when the opposite is true?

    All in all, I think Patrick’s point is necessary and helpful in this current climate. The reason is that the political sound-bite rallying cries are too easily built upon and spreading half-truths, or perhaps, quarter or tenth-truths. This “(un)constitutional” point I’m trying to clarify is one. People are being rallied and whipped up around the idea that health care reform is unconstitutional (and maybe parts of this particular version will be struck down by the Court!) but the fact that Congress does have the power to be much more directly controlling of health care via other powers and methods is unknown or not mentioned. So, I see much more heat than light being generated here. And there is too much ignorance about the constitutional system that actually is, which is interpreted by the courts and has approved Medicare (and by implication, something much more comprehensive), versus the one that some think should be.

  • Sharon Drubin

    Interesting points of view being expressed herein. I personally feel the Federal government has over-reached its powers with Obamacare in the mandatory provision to
    purchase. Even though private insurance will exist, with
    the requirements that all insurance providers meet the
    provisions of the Federal mandate, the private insurance
    market will soon disappear. I fail to see where the commerce clause gives the federal government the right to
    compete with private enterprise. I am not a constitutional expert.

    Solutions to better healthcare coverage for the poor is not
    an issue befor the supreme court. However, since solutions have been offered, why not consider funding clinics around the country on a federal level (there are many)with state supporting funds and administring the programs. Perhaps, physicians could be required to give so many “free” hours
    to specified clinics in their area of work per month to maintain their medical license. Similar to “pro bono” work
    of attorneys. I also agree that tort reform should be a part of any change in health carelaws.

  • TJJ

    Patrick #54, Hahaha, yeah, as they used to say in law school, if all else fails, argue the 14th amendment!

    But more seriously, the distinction is that for a citizen to have the prililege to drive, a state (one of the 50) can require/mandate that every citizen purchase liability insurance, or prohibit operating a motor vehicle. In fact, states can prohibit a person from operating a motor vehicle for many reasons, and those reasons can and do vary from state to state.

    But a state (one of the 50) cannot deny medical care to a seriously ill or injured person, even a non-citizen of the state or US, because that person has not purchased health/medical/financial responsibility insurance. At the very least they must treat them to a point of medical stability, before they street them.

    Now if a state passed a law that provided to only men can operate motor vehicles in the state, and woman cannot obtain a drivers license, then yes, now we have your 14th amendment issue.

    Anyway, enough, I am moving on, best wishes Patrick!

  • If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?

    But there’s a major problem with this line of argument: It just isn’t true. The founding fathers, it turns out, passed several mandates of their own. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.

    That’s not all. In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms. Yes, we used to have not only a right to bear arms, but a federal duty to buy them. Four framers voted against this bill, but the others did not, and it was also signed by Washington. Some tried to repeal this gun purchase mandate on the grounds it was too onerous, but only one framer voted to repeal it.

  • Brian B.

    Both the original author (Patrick Hare) and Joe Conner in Comment 11 mischaracterize the nature of state auto insurance laws. In the first paragraph quoted in this post, Patrick Hare states, “every single state requires citizens who drive motor vehicles to buy liability insurance to cover any damage they might inflict.” Joe Conner then says in comment 11: “Everyone who drives is required to have auto insurance because they are at risk of an accident.” These statements are inaccurate.

    Auto insurance is not a requirement to obtain a license to drive a vehicle. The auto insurance mandate is typically tied to the registration of a vehicle. Therefore, it is possible to enjoy the privilege of driving without being subject to the requirement to purchase auto insurance. A couple of examples will demonstrate this fact.

    First, a household of three licensed drivers containing two adults and one teenage driver. The household owns three vehicles all titled in the name of the father. Technically, in the eyes of the law, only the father is required to buy insurance in exchange for the privilege of registering his vehicles so that they may be driven on public roads. Two of the drivers in the household are not required to purchase auto insurance in exchange for the privilege of obtaining a license to drive. Sure, the entire household bears the economic burden of the insurance, but only one individual is required by the state to purchase the auto insurance.

    Second, a salesman in Miami is provided a car by his employer and so owns no other vehicle. His employer, a corporation that cannot even enjoy the privilege of driving because it is not a human, bears the burden of purchasing auto insurance under the state’s laws when it registers the vehicle provided to its employee. The salesman has no obligation to buy auto insurance even though he is a licensed driver. Furthermore, when this salesman travels to another state for vacation and rents a vehicle, that state does not require him to purchase insurance in order for him to drive in that state. Because he does not have an auto insurance policy in Florida, it is likely that there is little to no insurance policy coverage for his potential negligence in operating the vehicle.

    Both of these examples demonstrate the imprecision in the statements made by Patrick Hare and Joe Conner. I don’t know Joe Conner’s background, so his imprecision is excusable. However, as an attorney, I am shocked and disappointed by Patrick Hare’s lack of precision in making his argument, especially in light of the fact that he is holding himself out as an expert and basing his argument on the basis that he is an attorney. Attorneys are trained to be precise in their language and Mr. Hare’s argument shows a surprising lack of precision.

    What these examples show is that the auto insurance requirement is not a requirement to engage in commerce in the same vein as the Patient Care Act. Instead, the auto insurance requirement is a regulation on the ownership and use of a certain type of property, to wit: motor vehicles. And there are numerous regulations of this type: gun registration laws, housing codes, etc. When seen in this light, the analogy between auto insurance laws and the Patient Care Act’s insurance mandate completely break down.

  • Patrick Hare

    Brian –

    A careful(some might say “precise”) reading reveals that my post specifically says that people who drive and can provide proof of financial responsibility don’t have to buy liability insurance. (see Paragraph 2) This exception applies to both the family member and employee scenarios you outline above. To extend the analogy, the government won’t require people who already have insurance through their employer to purchase an additional policy, nor children who are covered by their parents’ policies.

    I’m not actually holding myself out as a legal expert whose opinion should be accorded more weight than any other citizen. I make no such claim in the text of the opinion piece, nor do I base my argument on it. I’m just a citizen, who happens to practice law for a living, making an argument on public policy grounds.

    And as noted above in the Comments, this is not a legal brief arguing the constitutionality of the statute vis-a-vis federal versus state powers. This is a much broader argument about public policy in general. Specifically, I’m pointing out that legislation by the government requiring citizens to have insurance coverage, even if they have to purchase it themselves, is not a novel idea – we already have laws to that effect in every state.

    Blessings on you in your practice of law – nice to make the acquaintance of other attorneys here in the JesusCreed community!


  • Tom F.

    Mike B.,

    You are right, that could be a consistent position. And I assume that by “the constitution does not allow the federal government to provide health care”, you mean that the constitution does not allow the federal government to force people to buy health insurance. (It already does provide health care: see Medicare). I guess it would help me be less suspicious of the motives of those challenging the law if there were at least some people who challenged the law on constitutional grounds who were not also opposed to it on philosophical grounds. The constitution seems lately to be a lot like the Bible: people appeal to it on the positions that support their perspective and ignore it in those that challenge their perspectives.

    And by the way, I can think of a couple articles from “liberals” who support the idea of the law but who are a little unsure of the constitutional support for the way it was defended.

    Universal health care aside, what is your solution to the problem of free-loaders? How do we solve the problem of people who don’t insure and then come sick to the emergency room and cost the rest of us a bunch of money? What do you do about insurance companies who refuse to cover those with pre-existing conditions?

    To me, it seems that the government could have accomplished basically the same thing with different language (calling it a tax instead of a forced purchase). So the constitutional issues seem to me to be a sideshow for the more basic philosophical question of how we are going to fix health care in America. I think some “conservative” ideas are good ones (increased interstate competition, transparent pricing, putting economic decisions back in the hands of consumers). But when Obama took some conservative ideas and made them part of his plan, the conservatives became libertarians. So this seems less about the substance of the law and more about just brute politics. If McCain had been elected, and done a similar plan, pointing to Massachusetts as Republican example, he would have not had half the opposition that Obama has faced. (Not that he would have had none, but still.)

  • Jason

    What Patrick said makes sense, but it avoids the real issue: the Constitution. While states have the right to require their own citizens to buy certain things for the public good, the U.S. Constitution does not give the federal government that same authority. If it did, then Patrick’s argument may be a good argument for why the ACA is necessary for the good of the nation. But it doesn’t. The issue is the constitutionality of the law, not whether there are good reasons for implementing it.