David B. Rivkin Jr. and Lee A. Casey think the lead proposed federal health care (insurance?) reform proposals are unconstitutional. To be fair, they only address one issue -- an individual mandate to buy insurance. [Others have more broad concerns.*] Unsure if they think the courts should do anything about them, particularly since the op-ed ends thusly:
The genius of our system is that, no matter how convinced our elected officials may be that certain measures are in the public interest, their goals can be accomplished only in accord with the powers and processes the Constitution mandates, processes that inevitably make them accountable to the American people.
The people who support the health care reform, including such mandates? Part of the "genius" is an independent judiciary to guard against the government going beyond its limited powers, but the tenor of their Slate piece puts such "second guessing" in question. Thus, as I note here, it is somewhat besides the point to note that current constitutional doctrine makes their arguments ridiculous. They are ultimately voicing a minority point of view, making a political argument, even if they cite a few court cases in the process. This is okay up to a point, if we understand what they are doing and how shallow their reasoning ultimately is.
They address commerce and taxation defenses. The first, they say, doesn't work for:
The otherwise uninsured would be required to buy coverage, not because they were even tangentially engaged in the "production, distribution or consumption of commodities," but for no other reason than that people without health insurance exist.
Who are these people not "even tangentially" so involved? Well, what about taxation? They cite a 1922 case though constitutional doctrine has changed a tad since then. Not enough apparently:
Although the court's interpretation of the commerce power's breadth has changed since that time, it has not repudiated the fundamental principle that Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power.
How about the power to tax and spend to "promote the general welfare" as noted in a ruling in the 1980s, not the 1920s? Is the health care fundamental to that, including equal protection to enjoy various aspects of citizenship? They also suggest:
Of course, these constitutional impediments can be avoided if Congress is willing to raise corporate and/or income taxes enough to fund fully a new national health system.
What is being offered here if not such "taxes" as such? For instance, "failure to comply would be met with a penalty," which means a tax. A tax constitutionally imposed.
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* One idea is that a personal right to individual health choices is being violated. I'm glad some conservatives respect a broad right to privacy (sometimes a tad ironically). But, putting aside that current insurance plans repeatedly already interfere with patient/physician interactions as do a myriad of laws (e.g., those against medicinal marijuana or various informed consent rules), it is unclear what the problem is.
Are you forced to go to a particular doctor? The fact you have to pay for the alternatives doesn't change your freedom of choice. Similarly, the fact public school offers various subjects a parent doesn't like doesn't mean the parent has a right not to have to pay to avoid such subjects.