Wednesday, March 24, 2010

Is individual mandate unconstitutional

I don't think so, and here is the take of the only constitutional law expert who also does health policy that I know, Mark Hall, from Wake Forest. And a friend who is a lawyer looked at the suit filed by some of the state Attorneys' General, and said it is a press release disguised as a lawsuit--a political stunt. But, politicians do political stunts, it comes with the territory. It is a good thing to have a legal challenge though, as we do need to get this straight. If we can't have an individual mandate, then the logic of the reform that just passed won't work. I have seen several Republican politicians easing down off the repeal ledge into complete policy incoherence--lets keep the insurance reforms (ban pre-existing, end recission) but do away with the mandate. That is called certain insurance market death spiral.

The leading Republican lawmakers (Sen. Berger and Rep. Stam) in Raleigh say they will introduce legislation that says North Carolinians do not have to abide by the mandate. Of course, federal law generally supersedes state law unless the law is judged to be unconstitutional.

The argument against an individual mandate as a limit of individual freedom and liberty is the most profound and basic argument against the new law. Leaving aside the irony that individual mandates have often been the position of Republicans who were interested in health reform [it is possible they have just changed their mind], it is a legitimate question to ask whether a law is worth the limitation of liberty and freedom that is implied by the law. Every law that the North Carolina General Assembly has ever passed--including those supported by Sen. Berger and Rep. Stam--have limited freedom. By voting yes on any bill, they decided the limits of freedom inherent in a given law was somehow 'worth it.'

I think the limit of freedom and liberty associated with an individual mandate are worth it. They, do not, which is fair enough. They can make the case and make the election in the fall about this issue if they think it helps them.

I think I could favor a revision of the individual mandate that allowed someone to not purchase insurance, but in return that person would be ineligible for Medicaid and other state assistance if they became ill. In this way they could be free, and the rest of us could be free from having to pay for their helath care costs if it turned out that they choose poorly.

1 comment:

  1. Even to the layperson these arguements seem weak. The mandate is not unconstitutional. I do not see how it limits freedom and liberty any more than federal regualtion of controlled substances, or comprehensive state regulation of firearms. I'm required to have car insurance right? My mortgage company is not giving me a loan without mandated home insurance are they? An arguement revolving around whether it SHOULD be done seems like it would be more effective than this stunt invloving the Constitution.