Thursday, January 14, 2010

What do George Will and Tim Dolan have in common?

See the update at the foot of the post.

Didn’t they both talk about health care recently?

Very good, grasshopper.

George Will, undoubtedly over a china teacup of bile and a croissant, pontificated on the unconstitutionality of individual mandates proposed in health care reform. He really said that it would probably be found constitutional, but tut tutted about the violence done to the Commerce Clause:

Opponents [read: Will] of the mandate say: Unless the Commerce Clause is infinitely elastic -- in which case, Congress can do anything -- it does not authorize Congress to forbid the inactivity of not purchasing a product (health insurance) from a private provider.

He went on to say that the Constitution’s principal purpose was to “promote inaction” on the part of the federal government. That’s true in the case of civil liberties, viz., the Bill of Rights, but Will’s case is laughable weak. There are actually two constitutional provisions that provide support for individual mandates, if Congress decides to go that way.

From Jack Balkin, a law professor at Yale who Spot had cites many times.

First, it’s a constitutional exercise of the general welfare clause (the clause in Article I, Section 8, Spot recalls, says “'promote the general welfare;” take that George):

The constitutional test is whether Congress could reasonably conclude that its taxing and spending programs promote the general welfare of the country. This test is easily satisfied. The new health care reform bill insures more people and prevents them from being denied insurance coverage because of preexisting conditions. Successful reform requires that uninsured persons — most of whom are younger and healthier than average — join the national risk pool; this will help to lower the costs of health insurance premiums nationally. Taxing uninsured people helps to pay for the costs of the new regulations. The tax gives uninsured people a choice. If they stay out of the risk pool, they effectively raise other people’s insurance costs, and Congress taxes them to recoup some of the costs. If they join the risk pool, they do not have to pay the tax. A good analogy would be a tax on polluters who fail to install pollution-control equipment: they can pay the tax or install the equipment.

The individual mandate is not a direct tax [which must be apportioned by state population]. The House’s version is a tax on income. Under the Sixteenth Amendment, income taxes do not have to be apportioned, regardless of the source of the income. The Senate’s version is an excise or penalty tax. [Under Supreme Court precedents, it is not direct because] [i]t is neither a tax on real estate nor a general tax on individuals. It is a tax on events: individuals who are not exempted are taxed for each month they do not pay premiums to a qualified plan.

Will ignores the general welfare clause entirely because the argument here is even weaker than the Commerce Clause. But Professor Balkin talks about that, too:

The individual mandate taxes people who do not buy health insurance. Critics charge that these people are not engaged in any activity that Congress might regulate; they are simply doing nothing. This is not the case. Such people actually self-insure through various means. When uninsured people get sick, they rely on their families for financial support, go to emergency rooms (often passing costs on to others), or purchase over-the-counter remedies. They substitute these activities for paying premiums to health insurance companies. All these activities are economic, and they have a cumulative effect on interstate commerce. Moreover, like people who substitute homegrown marijuana or wheat for purchased crops, the cumulative effect of uninsured people’s behavior undermines Congress’s regulation — in this case, its regulation of health insurance markets. Because Congress believes that national health care reform won’t succeed unless these people are brought into national risk pools, it can regulate their activities in order to make its general regulation of health insurance effective.

In truth, Will is just a well-spoken constitutional dunce.

But what about Tim Dolan, Spot?

Oh, thank you grasshopper.

Tim Dolan, the Chief of Police in Minneapolis, comments on the necessity of medical care from a street-level perspective:

Chief Tim Dolan, who said the city gets about 6,000 calls annually for people on the street suffering a medical ailment, or about 16 a day. One-fifth are homeless, he said, and nearly half the Minnesotans on GAMC live in Hennepin County.

It is important that they receive medical attention and needed medications, Dolan said, or they could become dangerous to themselves and others.

"It's a fragile, fragile web," Dolan said. "Losing GAMC funding is going to fracture that web."

He was speaking at a hearing on Governor Gutshot’s unallotment of GMAC, slated to take effect in March. Dolan was talking about a state program, not federal health care reform, but he does make the point that being without health care affects more than the individual involved. It’s a point that the empathy gene defective George Will cannot see.

It isn’t only the economic effects of the uninsured on everyone else: it’s a public safety issue as well.

Saturday morning update: This mandate issue is taking on the hysteria of the arguments about seatbelt laws or motorcycle helmet laws. These arguments had the same “freedom to refrain” theme in them. And there’re not bad analogies, either.

In the case of seatbelts and helmets and health insurance, the so-called “refraining” from doing something has the prospect of costing everyone else a lot of money. The cost of a broken back or busted melon to society in general and/or other policy holders specifically is great.

There comes a point when society is entitled to say that “refraining” from wearing a seatbelt – or buying health insurance if you can afford it – is so foolhardy and costly to everyone else that we’re going to require it.

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