Layman's view of Attorney General Case Against Insurance Mandates

Since the health care bill passed, there have been 14 states that have sued to prevent some of the provisions within the health care law from effecting them.

Mainly, the insurance mandates.

Their argument, as described in this Daily Cougar article over the lawsuits, goes like this:

Their main issue with the legislation is the requirement that individuals purchase health insurance or face financial penalties.

For more than 230 years, the government has never forced its citizens to purchase anything, as there is no provision in the Constitution that grants the Congress this authority.

An interesting argument.

Too bad it's not true.

In 1792, Congress passed and George Washington signed the Militia Act of 1792 (stolen from a reference from a Salon.com article). Here's the important part:

e it enacted . . . That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . . . That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . .

So not only were they telling every "free able-bodied white male" that you're now in the militia, but you have to go out and buy yourself a gun.

"But that's not health care!" I'm sure those attorney generals would say. Sure - so how about John Adams - truly a rampant socialist signed into law an insurance mandate on all sailors making them pay 1% of their income to an insurance program.

So that shuts down the concept that the US government never made people buy things.

Let's go to the usual argument from there. Usually it goes like this:

1. States have mandates for auto insurance, so why can't the federal government make the same kind of insurance mandate?

2. But people *choose* to drive or not to drive. (A point I'd quibble with in a society that puts such low value on public transportation.) They don't choose to live, so it's not right to make them buy insurance.

Let me lay out a few arguments regarding this.

First, is in how the insurance mandate works. If you don't have insurance, then the IRS can lay a 2.5% tax on you. Contrary to hysterical belief, IRS commandos with guns aren't going to kick in your door and make you pay at gunpoint. In fact, Politifact found that you'd have to build up a lot of fines before the IRS would even care about going after you.

The mandate won't kick in until 2014, and typically the way it will come to people's attention unless they file for a tax refund and the IRS spots they don't have insurance (in which case the tax will be applied), or if they show up to the emergency room and found not to have insurance, the IRS could find out.

This is the most important piece, and ties into the basic argument regarding why the insurance mandate is justified.

In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act. In it, it mandated that hospitals must provide emergency care and assistance to people, regardless of their citizenship, or their ability to pay.

Hence, the entire purpose of the insurance mandates. When people go to the emergency room and either don't have insurance or the ability to pay for themselves, everyone else that pays into the system is paying their costs.

"But John - the hospital can bill them!" you say.

Yes. But the hospital can't make them pay.

The idea was mentioned that people choose to drive so it's fair to make them get auto insurance. Everyone is also able to go to the emergency ward. If you're going to take advantage of the fact that hospitals must pay for your care, then it's only fair that you are a part of that system.

It should be mentioned that the insurance mandates also include subsidies for the poor, expanded Medicaid so that those without aren't forced to purchase insurance when they clearly can't pay for it. However, for everyone else, it's not only Constitutional based on precedent, but warranted that everyone who can take advantage of that system should pay into the system.

The choice was either a direct tax on the population, or allow people to use the market. If anything, a Republican idea for mandates (as Mitt Romney would remind people during the 2008 elections, or Chuck Grassley who pushed for mandates for ages before he decided to oppose them the second the Democrats put them in to get Republican support.

And, just for added benefits, there's one more ace in the whole that gets this *whole case* thrown out:

The mandates are optional.

That's right, kids. Don't like the mandate? Well, then your state can opt out of them - all it needs is to come up with their own plan:

It's called the "Empowering States to be Innovative" amendment. And it would, quite literally, give states the right to set up their own health care system -- with or without an individual mandate or, for that matter, with or without a public option -- provided that, as Wyden puts it, "they can meet the coverage requirements of the bill."

That's right-if you have a state plan, then there's no mandate needed. Single payer, Belgian system, some co-op thing - whatever. Just have a plan that might work, and the mandate goes away.

Either way, I'd say the 14 state attorney generals have a hard time ahead of them. But, I'm sure spending tax payer dollars to make themselves look good will be well worth it.

For them.