Free Markets, Free People


Health insurance mandate’s Constitutionality and the "necessary and proper" clause

It appears that the main question, or at least one of the main questions, about the health care mandate in Obamacare that requires Americans buy health insurance may revolve around the "necessary and proper" clause and not just the badly abused Commerce clause.

From the New York Times:

The necessary-and-proper clause sits at the end of Article I, Section 8, after 17 paragraphs that enumerate the powers delegated to Congress, ranging from the establishment of post offices to the declaration of war. It conveys authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.”

The reason that is a key is because the latest decision that went against the administration involved Judge Henry Hudson rejecting the “necessary and proper” defense.  As the Times mentions, the court has struggled over the years to define the necessary and proper clause.  Here’s the case as it stands now:

The [DoJ] , which represents the Obama administration, argues that the insurance requirement is constitutional under the commerce clause and allowed under the necessary-and-proper clause as a rational means to an appropriate end. It points to a series of Supreme Court precedents that interpret those provisions as allowing the regulation of “activities that substantially affect interstate commerce.”

The act of not obtaining health insurance, the federal government’s lawyers contend, is effectively a decision to pay later rather than up front in a market that consumers cannot avoid. Such decisions, they say, have a substantial impact on the market because many of the uninsured cannot afford their care and shift costs to governments, hospitals and the privately insured.

Furthermore, the lawyers argue, the insurance mandate is essential — both necessary and proper — to making other changes work, particularly prohibitions on discrimination by insurers against those with pre-existing medical conditions [emphasis mine].

Obviously, at least in my estimation, the argument fails for a number of reasons.  Obviously, I’m not a lawyer, so I’m simply giving my arguments based on the stated particulars of the case as outlined above. 

First the wording “rational means to an appropriate end.”  I’d argue the end is not at all appropriate – i.e government dictating that someone must have insurance certainly smacks of what government had denied and called a “myth”.  That is government is now in charge of health care for everyone.  Unless you accept that premise, the argument is invalid.  Acceptance of that premise and the “appropriate end” argument means government can pretty well do whatever it wants and the Constitution as a guiding document has been mostly rendered moot.

The argument goes on to say that not having health insurance is “effectively a decision to pay later rather than up front in a market that consumers cannot avoid.”  Obviously, in the strictest sense that’s not true.  “Consumers” can avoid that market.  And do.  That’s not to say they will – but the fact is no one is forced to use it and no one has to use it if they so choose.   Arguing that consumers must be required to buy insurance because they will use the market seems a claim that is unfounded in fact.  People of means, for instance, may decide they’d rather pay as they use the service, vs. obtaining insurance.  That should be their decision, not governments if we’re really a free country.  And while they may be a small set of those who will seek health care, they still give lie to the necessity of insurance to cover the costs of their care – the “pay later than up front” mentioned in the emphasized argument.

Finally there’s the argument which says the mandate is necessary “to making other changes work, particularly prohibitions on discrimination by insurers against those with pre-existing medical conditions

No.  It’s not. Consider the fact that much of the problem we face with health insurance  today revolves around the structure of the market as one in which employers provide the coverage.  Then there’s a problem of  government’s making.  The restrictions on selling  health insurance across state lines.  This has essentially segmented the huge pool we see in other insurance markets to 50 segmented markets.  It has made the ability to buy an insurance product at the best price and outside the traditional employer furnished insurance all but impossible.  Removal of that restriction would go a long way in solving some of the toughest problems – pre-existing conditions and portability. While government may feel compelled to place “prohibitions on discrimination by insurers against those with pre-existing medical conditions”, there would probably be less of a need to discriminate in larger pools of insured.  Anyway, that solution is found nowhere in the existing law.

There is no “right” to health care.  As far as my opinion goes, I find nothing in the Constitution that gives government the power or authority to require I pre-pay for health care.  And that is precisely what it is claiming – that health care is something I will use and since I will use it, I must pre-pay for that use.  No matter what my health, age, etc.   It argues that it can remove my choice in the matter by law.

One more time – freedom is choice.   When it is removed, so is freedom.  This is just another step toward a more oppressive government presence in our lives.  One can only hope that the SCOTUS will rule against the administration on this travesty of a law and cripple it to the point that repeal is the only valid choice for Congress.  Otherwise, the door will be opened to all sorts of mandates we haven’t even imagined.   And with each mandate more choice is eliminated.

If anyone can argue that was the vision of the founders of the country or the writers of the Constitution, and do so with a straight face, I’ll be glad to nominate them for an Oscar next year.

~McQ

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12 Responses to Health insurance mandate’s Constitutionality and the "necessary and proper" clause

  • First, best holiday wishes to you and your family!
    Your discussion of the government’s restriction about selling health insurance across state lines reminded me of something I bring up to folks when debating the health care monstrosity …  imagine if the health insurance providers were marketed like the auto insurance companies.  Think of the current competition between the ‘Geicos’, the ‘Allstates’, the ‘State Farms’, etc.  What would be the result of health insurance companies competing for your attention in the same way (as long as the govenrment truly got out of the way)?  I think most logical- thinking people can answer that correctly.  Then again, much of the populace seems to be economically unenlightened, so maybe I’m dreaming …

  • Consider the fact that much of the problem we face with health insurance  today revolves around the structure of the market as one in which employers provide the coverage.  Then there’s a problem of  government’s making.  The restrictions on selling  health insurance across state lines.

    Actually, McQ, those are BOTH government-generated market distortions.  In response to FDR’s wage and price controls, employers had to find ways to bid for good employees.  One way to do that was to offer perks…like health insurance.  Prior to WWII, we paid as we went, and health care was good and inexpensive (docs made house-calls).  You can see the progression since.

  • This Obamacare plan has  become a talk of the town all over the world. It seems that Mr.President has forgotten the term “democracy” because when so many citizens are so much against this law, it’s wise reconsidering it, isn’t it so?

    • “it’s wise reconsidering”

      Heck no, he’s the smartest man in any room he’s in, which by extension makes him the smartest man in any building, any city, any country, and the world.   The smartest man in the world knows what’s best for us, and when he knows he’s done what’s best, there’s nothing to reconsider.     Democracy is such a bore, we can accomplish so much more if only one person is making all the decisions for us, and there’s nothing wrong with that so long as that one person IS the smartest man in the world.

  • And that is precisely what it is claiming – that health care is something I will use and since I will use it, I must pre-pay for that use.  No matter what my health, age, etc.   It argues that it can remove my choice in the matter by law.

    Again, slight disagreement, McQ.  They are saying that I will use health insurance at some point, and hence I must pay for it.  This is untrue.  I have never had health insurance.  I pay for my own health care, and I always have.  I raised eight children that way.  I HAVE had catastrophic coverage, but I’ve never used it.
    There are diseases I could get that would kill me.  If I can afford treatment…or my family can…very well.  If not, I did not expect to get out of this alive…

  • The Necessary & Proper Clause gives the Federal Government the authority to do what is needed to execute their enumerated powers  listed in Article I, Section 8.  I’ve paraphrased these powers below.

    1. Collect taxes
    2. Pay US debts
    3. Provide for the common defense & general welfare
    4. Borrow money
    5. Regulate Commerce
    6.  Establish uniform rule for naturalization & bankruptcies
    7.  Coin money
    8. Fix standard weights & measures
    9.  Punish counterfeiters
    10. Establish post office & post roads
    11. Issue patents an copyrights
    12. Constitute Federal courts inferior to the Supreme courts
    13. Punish piracy & crimes on the high seas & international laws
    14.  Declare war
    15. Make rules concerning captures on land & water
    16.  Raise & support Armies
    17.  Provide & maintain a navy
    18. Make rules for government and regulation of land & naval forces
    19.  Call up the state militias
    20. Govern Washington DC
    21. Govern military and naval installations

    –And
    “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

    Anyone see a mandate for every citizen to buy anything?

  • It is not a means to an appropriate end because the necessary and proper clause refers only to the aforementioned enumerated powers.  And I see no enumerated power for congress to seize control of the medical profession.

  • I think you misunderstand the “end justifies the means” argument. The end is regulating health care. Requiring us to buy insurance is the means. The “necessary and proper” question is whether or not the means are appropriate.

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