Friday, December 31, 2010

Finding an Analogy for the Health-Care Mandate

Dear me. One in three federal judges feels that the new health-care law’s individual mandate – that everyone is required to buy health insurance – exceeds government’s powers under the Constitution.

The new health-care law is really complicated and abstract (a lawyer’s dream, in other words), so a lot of people have been using analogies to help bring the issues into focus for us simple folk. I’d been fond of the states’ uncontested right to force automobile owners to buy insurance for their cars. However, it turns out that really smart lawyers can distinguish this analogy into oblivion.

Those of us who remember our childhood civics classes will recall that the federal government only gets the powers enumerated in the Constitution. All other powers remain with the states (except when they don’t, but that’s another story). So the states can require insurance, but the feds can’t.

As I was thinking about this, it occurred to me that there’s another flaw to the analogy with car insurance – compliance. We do know that there are people on the road in Philadelphia who actually have car insurance. We’re not entirely an endangered species, but if you have a collision at an intersection in this town, the likelihood of the other driver having insurance probably isn’t much better than a coin toss.

If compliance with the new health-care law looks at all like compliance with car insurance, we might as well go home now.

So the car insurance analogy is pretty much mangled. And with compliance levels being what they are, conservatives are unlikely to mount a 50-state push to repeal car insurance laws as an infringement on our liberties. Why bother? They’ve already won.

I thought for a while about the military draft. I had thought, when I was younger and there was a war in Vietnam, that the draft might be considered involuntary servitude, and therefore unconstitutional. But then it was explained to me that, in this country, government has a right going back to colonial times to call all adult males to the common defense of the community. How the right of the states to raise militias got transferred to the federal government is something I’m still a little hazy on.

But I’m thinking if we can force an 18-year-old man to charge a machine-gun nest, we really ought to require him to buy health insurance.

Or maybe conservatives should get a judge to declare the military draft unconstitutional. I’d love to see that one go to the Supreme Court.

Here’s another analogy that I came up with – the tax deduction for charitable giving. Government, as a matter of policy, encourages charitable giving. Remember those Thousand Points of Light? So if you give money to a qualified charity, Uncle Sam lets you pay less in taxes.

Well, they say charity begins at home. So if you buy a health insurance policy for yourself, you’re doing a good deed, and Uncle Sam doesn’t make you pay a penalty.

Apparently the distinction between a tax break and not having to pay a penalty is a big deal. I’m afraid I don’t see it. And there’s apparently a feeling that we shouldn’t be forcing people to give money to private organizations. Well, charities are private. And apparently the government has never punished people for not doing something. On this last one, I just have to laugh. Let’s do a little thought experiment. You receive a telegram from the United States government, one that begins with “Greetings.” It’s an invitation to attend a form of summer camp run by the government. You decide not to go, and you’re a bit rude and you don’t bother to respond to the invitation. What happens next?

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