Opinion: Universal Health Care

By: Nicholas Lawrence

Posted: 10/14/07

Well universal health care might not be a new idea, but it certainly seems to be one that is gaining traction. And you do have to give Senator Clinton some credit: unlike Rep. Dingell, who has introduced the exact same proposal for universal health care for the last 52 years, Senator Clinton has at least modified her proposal since her failed attempt in the 1990s. What with pretty much all the leading Democratic candidates jumping on the bandwagon it seems pretty much certain: if a Democrat wins the presidential election you can almost count on some sort of increased mandates for health care. The proposals run the gamut from Rep. Kucinich's proposed "Medicare for all" to Senator Clinton's (and Senator Dodd's, and former Senator Edward's) proposal to require individuals to purchase health insurance, to Senator Biden's "insure everyone under the age of 18".
What I have not heard much discussed is the constitutionality of any of this. While I can see the constitutional power of the Congress to expand Medicare, or to insure everyone under the age of 18 (I take it this is sort of SCHIP on steroids), I have more trouble with the apparently popular "individual mandate" plans endorsed by Senators Clinton, Dodd, and Edwards (and as far as I can tell Governor Romney). Perhaps this is because detailed explanations of how these plans would actually work are so hard to come by, but I'm really having trouble visualizing it….the ever popular comparison to mandatory automobile insurance isn't particularly helpful either.
This is so because you are not required to purchase automobile insurance, you simply have to purchase automobile insurance if you wish to be licensed to drive on a public roadway. Furthermore, as far as I know you are only required to purchase liability insurance. In other words the insurance isn't really for you, it is for the protection of others you might injure or kill on the roadway.
Health insurance on the other hand is dramatically different. Health insurance is not for the protection of others, it exists very specifically to insure that you personally will be able to receive medical care that will hopefully alleviate some sickness or disease that is afflicting your person. Furthermore, the purchase of automobile insurance is justified because it is not really mandatory at all. It is only mandatory if you choose to drive an automobile. Unless the "individual mandate" plans are going to come with a newly required "license to live" I have difficulty seeing how the comparison of health insurance to auto insurance is helpful at all from a constitutional perspective (although it appears to be a superficially clever explanation).

My guess, for whatever it is worth, is that if Congress ever seeks to impose an "individual mandate" they will cheerfully rely on that font of all congressional power, the ever potent commerce clause. When I was a 1L people used to tell me that 1Ls are full of idealism and 2Ls are full of cynicism, and I remember wondering why that might be. While we certainly encountered some cases our first year that made me a little cynical (New York Times v. Sullivan comes to mind), it was not until my second year, in constitutional law, that I truly understood why 2Ls are so cynical.
Okay, it probably isn't why 2Ls are cynical, but for me the whole commerce clause jurisprudence was pretty depressing. Undoubtedly the worst case ever decided by the Supreme Court (okay there's a lot of competition, so I don't really mean that, chalk it up to an attempt to express that I think this was a really bad decision) has to be Wickard v. Filburn. I just remember reading that case, where the Supreme Court held that some poor guy did not have the right to grow his own food on his own land and eat it himself and being absolutely appalled. As if it helped any, the court cheerfully points out that if Filburn was allowed to grow his own food he wouldn't have to buy it from somebody else. I mean really: "red blooded Americans" should be appalled, "pseudo-environmental carbon freaks" (I use the term in the kindest possible way) should be appalled, enemies of
"corporate America" everywhere should be appalled. Even glassy eyed, completely- disconnected-from-political-reality libertarian potheads should be appalled (I really mean it, have a look at Gonzalez v. Raich and see what case the court cites for precedent).
To make it even better, the court patiently explains that if Congress allows poor Filburn to get away with growing his own food instead of buying it from some multi-national, then Congress won't be able to regulate up to 20% of the wheat grown in the country. The argument is that even if Filburn's wheat is not "interstate commerce," that it
"affects" interstate commerce, and so under the necessary and proper clause Congress must have the power to abuse the poor man in pursuit of some lofty greater good (higher profits for commercial wheat growers I guess).
I'm still infuriated by the case, and at least one reason is that it never seems to occur to the court that if the wheat isn't interstate commerce, maybe Congress isn't supposed to be able to reach it, and maybe it isn't necessary and proper at all that they do so. I could be mistaken (and probably am, after all I'm just a humble law student and this a 65 year old case that is still being cited as precedent by people a lot smarter than I am), but I believe logisticians might identify a bit of petitio principii, or circulus in probando, somewhere in that argument.
How is it possible that in the land of freedom and opportunity a poor man trying to feed himself on his own land can be hauled off by some soulless government agency and forced to pay his "fair share" to ensure wheat prices stay high for the multinationals? How is it possible that in this day and age some poor sucker could be hauled off by the government and forced to pay his "fair share" to ensure insurance rates stay low for his friends and neighbors? How likely that all this will occur without obscene profits (and equally obscene "campaign contributions") by the beneficiary insurance companies? I don't know the answers to these questions, but I am guessing if it ever comes to it the court will reflexively reach for the commerce clause and uphold congressionally guaranteed profits for insurers just like they upheld congressionally guaranteed profits for commercial wheat growers during the new deal.