Freedom for the uninsured!


I’m traveling for the rest of the week, so postings will be light or non-existent. But not quite yet. This is an expanded version of my latest Sunday print column:

Perhaps you’ve long believed that extremist Islamic terrorism poses the greatest danger to America. Well, the Republicans wish to disabuse you of that notion.

House leader John Boehner declared the other day that health care reform is actually “the greatest threat to freedom that I’ve seen in the 19 years I’ve been in Washington” - an enlightening assertion, since I’d foolishly assumed that al Qaeda scored higher on the fright meter than the prospect of Americans getting the same health protections that are common everywhere else in the democratized world.

Worse yet, real health reform hinges on a proposal that Republicans call “a stunning assault on liberty.” They’re incensed about the so-called “individual mandate,” the idea that virtually all Americans should be required to carry health insurance. Republicans see this mandate as an unconstitutional curb on personal freedom, arguing in essence that Americans have the inalienable right to be uninsured; in the words of Senator Charles Grassley, “Individuals should maintain their freedom to choose heath care coverage, or not.”

Republicans often have been quite successful in political disputes when they invoke words like freedom and liberty, which pack an emotional wallop. But there is also something called the social compact, the notion that the American community is strengthened if everybody pitches in. That’s where the health care mandate comes in.

It’s simple, really: An effective, affordable insurance program spreads the risks. If only sick and high-risk people sign up for health insurance, coverage will be too costly for many purchasers. But if virtually all healthy people are compelled to sign up, premiums will be cheaper across the board and there will be more money in the till for the sick folks who truly need costly care.

What’s ironic is that many Republicans in the past have agreed with this inescapable logic. They were for the mandate before they were against it.

Earlier this year, Grassley told Fox News that there wasn’t “anything wrong” with a mandate. Just as motorists are required to carry auto insurance, he said, “the principle then ought to lie the same way for health insurance.” At least seven other Republican senators have spoken favorably of such a requirement (South Dakota’s John Thune: “There are good arguments on behalf of getting everybody into the pool”), and 2012 presidential candidate Mitt Romney made it a centerpiece of his health insurance overhaul in Massachussetts (the ex-Bay State governor wrote in Newsweek that when the uninsured show up for treatment at hospitals, “require them to either pay for their own care, or buy insurance”).

But Republicans, mindful of the need to placate the tea-baggers and right-wingers who equate health reform with various forms of totalitarianism, can ill afford to echo their previous statements. Nor they can afford to agree with their former Senate leader, Dr. Bill Frist, who has endorsed the mandate concept, arguing recently on the Fox Business Network that it’s “about the only way” to achieve reform, that Americans “should be responsible to paying for it” - and face federal penalties if they don’t.

The Democrats continue to tweak the proposed penalties, much to Boehner's chagrin. Last weekend, shortly before the House passed a health reform plan (thus becoming the first chamber to do so in the 60 years since Harry Truman put it on the agenda), the GOP leader delivered this statement on the floor:

“We have an individual mandate in this bill in front of us, that says every American is going to buy health insurance – whether you want to or not. And if you don’t want it, you’re going to pay a tax….Now, this is the most unconstitutional thing I’ve ever seen in my life!”

Translation: Even if President Obama ultimately signs a health reform law, the fight may well continue. The opposition could hire lawyers and ask the courts to throw it out.

Whether they would succeed is highly debatable. It’s true that the Congressional Research Service has looked at the constitutionality of a mandate and come up empty, saying only that “it is a novel issue whether Congress may…require an individual to purchase a good or service,” and calling it a “challenging question.” But Supreme Court rulings since the 1930s put the reformers on fairly solid ground.

When Boehner declared the mandate to be the most unconstitutional thing in his whole life, he was presumably referring to the Constitution’s commerce clause, which says that Congress has the power “to regulate commerce…among the several states” – in other words, economic issues – but certainly says nothing about requiring Americans to buy health insurance or any other product.

The problem for Republicans, however, is that the high court has long given the commerce clause an expansive reading, and allowed the feds to regulate all kinds of behavior.

To cite the most famous example, the landmark ’64 Civil Rights Act invoked the commerce clause in order to bar whites from discriminating against blacks, even though the core issue was not economic. The court was fine with that. The court has overturned only two commerce-clause laws since 1935, as even mandate opponents grudgingly acknowledge, which is why Obama spokesman Robert Gibbs was correct on Oct. 28 when he said, “I don’t believe there’s a lot of case law that would demonstrate the veracity” of the GOP’s position. (The high court nixed a federal law that curbed gun possession near schools, and a federal law making it easier for women to file gender-related claims. The court said that neither law had the remotest connection to national economic issues covered by the commerce clause.)

Health care, by contrast, is indisputably an economic issue. It would be tough for the Republicans’ lawyers to argue in court that an insurance mandate falls outside the commerce clause – given the reality that health care costs have a major impact on economic commerce. In fact, the Republicans themselves have repeatedly made that link, by complaining about how the Democrats are seeking to restructure “one sixth of the economy.”

The Republicans have also asserted that the proposed federal non-compliance penalty, which would target anybody who refuses to buy health insurance, is tantamount to a brand new tax. Maybe that’s a good political argument – a new Associated Press poll reports that 64 percent of Americans oppose an insurance mandate if a non-compliance penalty is attached – but it’s a lousy constitutional argument, because the high court has repeatedly upheld Congress’ broad taxing powers.
Nevertheless, this is potentially fertile rhetorical turf for the Republicans. If health reform is enacted and signed, they can stoke conservative base turnout for the ’10 congressional races by inveighing against the Democrats’ “unconstitutional” attempt to require health insurance and thus infringe on freedom and liberty. And even if reform fails, they can recount how the Democrats tried to pull an unconstitutional fast one. The mandate is hardly a threat akin to al Qaeda, and I doubt that even the tea-baggers think so. But there’s ample red meat in the argument that Americans resent being told what to do. Social compact notwithstanding.