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One of the most important questions the Justices will likely bring up tomorrow in the deliberation about the individual mandate will be: Is health care — or health insurance — actually unique?
This raises the important issue sometimes called the “broccoli question.” The general idea behind it is that if the federal government has the constitutional power to require people to buy private health insurance simply as a condition of being alive, is there is any limit to what the federal government can force you to buy or do? If it can make you buy insurance, can the government also make you buy and/or eat broccoli?
The Obama Department of Justice and many of the law’s supporter have argued that health care is somehow unique. They note the health insurance market is such a large part of the economy, that everyone will eventually use a health care service at some point, that the mandate is necessary for the federal government to achieve its goal of expanding coverage.
All the arguments I’ve seen for the uniqueness of health care are, in my opinion, seriously lacking as a legal and logical argument. Of course a federal mandate to buy insurance would greatly affect the interstate commerce for health care, but any mandate would do that. If the government mandated everyone to buy cars, guns, gym memberships, emergency phones, or vegetables it would result in significant changes to the economics of these products and society as a whole.
If the Supreme Court decides that health care is unique for some reason that allows it to uphold the individual mandate, it will presumably do so in a way that limits the precedent it sets. The precise contours of the logic the Court uses to define health care’s uniqueness could help shape the scope of the federal government’s powers for a generation.
It is also possible that the Court could decide that health isn’t unique, but determine that isn’t legally required to uphold this mandate. The Court could find this mandate to buy insurance, and by default almost any mandate to buy a product, constitutional under the commerce clause since such action would impact interstate commerce.
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Thank you for the work you have put into the several articles that you have posted on the issue. The articles help understand what type of thinking the Justices need to do if they are to attempt to resolve any of this.
Health care is unique… it is so vitally important that it is a “common good”… a right of all people.
Health Insurance is not unique… it is a common ordinary scam. Health Insurance is the middleman scam. HI takes money out of the system but serves no real purpose. Rather that the patient paying the doctor or hospital directly the middleman gets inbetween and takes money in return for then handing the money to the doctor or hospital. The health insurance companies serve NO REAL PURPOSE WHATSOEVER. They are just moneysucking middlemem. The money they take would be much better spent going directly to the health service providers [doctors and hospitals} thereby leaving more money for service and real health care rather than spending in on middlemen doing... NOTHING.
Most advanced countries governments have the common sense to know this... except our own... the totally corrupt American government.
The American people want REAL healthcare reform. Instead what we have gotten is corruption from our totally corrupt Democratic and Republican government. And they obviously intend to mandate [force] the American people to waste more insane amounts money… on a scam called health insurance… which does nothing.
The Supremes have been severely lacking in protection of the constitution with respect to war-making, assassination of US citizens and surveillance, and many others, yielding to “executive privilege.” Why should this be any different?
They were active in interfering with the Florida recount, give them credit for that, but otherwise they suck.
funny how so many people-and many that i know-want the challenge to succeed because of their visceral hatred for Obama and their stated desire for “freedom.” and they’re so surprised that i’m not “defending Obama.” Shit. the law sucks. By the end of the healthcare reform debate (such as it was) even Obama was saying “health insurance reform” rather than health care reform.” Shitty law. Does not even begin to begin to approach a beginning to universal coverage.
Excellent — but it’s not “health insurance” it’s medical insurance by corporations because the government — unique in the advanced world — refuses to self-insure. They’d rather the consumer pay corporations for administering it, at whatever they want to charge, and with many problems as revealed in Michael Moore’s “Sicko.”
with the supreme court arguments and the focus on this issue-for a few days, then back to etch-a-sketches and other more important stuff-a reviewing of Sicko might be a good idea or re-publicizing or re-release or re-something
All Americans, from birth as citizens, even illegals, are participants in America’s emergency care health system, all should contribute to it as they are able.
Well that’s a trite statement–almost tautological in character–and hardly in dispute. The question at hand is how must we all contribute as we are able, not whether. I imagine in the minds of some the two are identical; in fact they are quite distinct questions. Proponents of ACA try to claim the mandate settled the latter question, but that’s not the case, since we already all do support the health care system (not just emergency care) one way or another. Citizens too impoverished to have an income tax bill still pay state and local sales and other taxes that support Medicaid, anybody who earns an income is taxed to support Medicare, and anybody in the 1% whose income is entirely capital gains is still taxed, and that tax money supports health programs.
The mandate isn’t the correct answer to the question of “how” because it’s a transfer of wealth from citizens to private corporations that do not provide health care, who then dole out the money they’ve received as they see fit rather than as the patient and doctor determine is the best course of medical action. We already have “death panels,” in other words–they’re called “health insurance companies.” The model is demonstrably deficient and should have been scrapped.
Well stated, THANKS. So, why would any American vote to reelect Obama, has he done so may other wonderful things to offset this huge corporate give-away?
Hell, it doesn’t even begin to be “fair” to those few it actuually pretends to help!
Starting with our politicians?
“The model is demonstrably deficient….” Call it what it is, a “CORRUPT” give-away.
Thank You. Although I know that the bite back on that is people saying that single payer is insurance.
Sure you can say single payer is the big kahuna of ‘insurance policies’. But the very thing that makes it anathema to the ‘Markets’, is the very thing that makes it successful at keeping costs down and countries healthy. It has stripped the profit motive from everyone pooling their money. It is about providing the most health care possible to everyone. You put that money into the pool held by an insurance company and they see the health care as a drag on their profits. And that difference is the very thing that makes paying a health insurance company NOT the same thing as health care. They want to make sure you do not have the ability to use the health care you are paying them to help you access.
And then there is the fact that we are already paying for the health care accessed by those without insurance with various taxes. So no the mandate does not meet even the pretzel version of qualifying for the Commerce Clause. (Which isn’t really about the individuals but businesses (and if this wasn’t the signature legislation of so-called Democratic president Democrats would be pointing out how much of a stretch this is.)
Health care is unique. Hospitals are required by law to take care of patients that are in dire need of care without regard to payment. Once you have a law that requires that services be provided, it doesn’t seem such a leap to require payments for services in advance.
That is where the broccoli comparison fails. Grocery stores are not required by law to provide food, no matter if you are starving.
But the mandate isn’t forcing people to pay for health care. It’s forcing people to pay for health insurance, which doesn’t necessarily lead to health care. That’s a key point, and one mandate supporters like to ignore, because it renders their argument void.