Tuesday, February 1, 2011

Why Healthcare reform is Constitutional

The judges and activists who argue against the Constitutionality of the Affordable Care Act have took the position that the mandate to purchase adequate insurance is impermissable. Their basic tenet is that if this is allowed the power of the Federal Goverment would be virtually unlimited; that is bad; that is unconstitutional. Those of us who beleive in the reform need to not only answer that question but establish a solid legal framework to understand the reform. The consequences of not doing this will be to have really only two choices: no reform or more government (single payer type reforms). I guess there could be a third category of doing the same thing in a different way, maybe raise everyone's taxes, then give a tax credit to those who have insurance. In addition, if this really is unconstitutional, why not Medicare, Social Security, and on and on. But I digress.

First let's understand why ACA is constitutional:

It is a mandate that hospitals treat emergency patients under the:
Emergency Medical Treatment and Active Labor Act

BTW it is also a mandate in all 50 states that 911 personell assist people who need help.

Assuming the above are constitutional (?)

It has now been shown that it is Necessary and proper to further these legal realities with a mandate to help pay the costs. That's what Obamacare does. (I think we need to own the word since those against it have won that political fight of nomenclature).

Not only does Obamacare lower prescription drugs for seniors,
Not only does Obamacare end discrimination by Insurance companies against those with pre-existing illnesses.
Not only does Obamacare offer tax credits to small businesses to provide coverage to their employees.
Not only does Obamacare prohibit insurance companies from dropping patients because they cost too much money.

Obamacare lowers all of our healthcare by requiring everyone who can afford it to be responsible and have coverage.
On to the criticism:

why couldn't the government: force us to buy a gm car, join a healthclub, eat more vegetables, etc.

These slippery slope scenarios aren't valid because they would violate
other parts of the Constitution!

I have a right to privacy concerning what food I eat. 14th amendment
I have a right to determine what club I join or whether I join. 1st amendment
I have a right to determine whether to buy a car and what type. 1st 4th, and 14th.

It would be unusual punishment to fine me for not eating the right foods (8th amendment)

On a policy level all of these outcomes wouldn't impact interstate commerce in healthcare the way actual healthcare delivery does. For instance, even if I am forced to go to a healthclub or eat better there are thousands of other decisions that would make that one irrelevant. Like eating out at a high fat restaraunt after each workout. Or like participating in dangerous activities like sports. So the connection between all of these slippery slope conditions and the cost of healthcare is too tenuous and would make them unconstitutional because of the above.

In terms of it being good for America if everyone bought a GM car. We start out with the fact that millions don't drive. In fact in many places, it is the exception that a person buys a car rather than the rule. So there's a huge distinction between that and healthcare. We will all need healthcare. We all don't need to drive. It wouldn't make sense that we could be forced to buy a car when we don't want to because there are equally valid ways to live without that decision. Walk, mass transit, get a ride with someone else. So to violate that decision-making would be unconstitutional. In terms of people who are buying a car, they have the same rights as those who don't (equal protection). So the government would have to limit their desire to tax credits and other incentives.

So the basic answer to the limiting question is: this decisions and others would be limited by the other parts of the Constitution.


What part of the Constitution allows the government to:

force people to wear clothes in public. Doesn't that force a private purchase?

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