And Now Back To Health Care…

Ken AshfordConstitution, Health CareLeave a Comment

Well, some shooting aside, the new Congress is back in session and rarin' to go.  First on the agenda, repealing all the progress mad in health care.

Now, of course, the ability of the Republicans to do this is limited.  After all, Obama isn't going to sign a bill (even assuming a bill passes both houses) that guts his health care initiative of last year.

But we're still going to go through this charade anyway.  And what is the first stop?  The individual mandate.

Republicans argue that the individual mandate is unconstitutional, i.e., that the federal government cannot compel you to buy insurance.  The federal government can only prevent you from doing things.

It's a rather specious argument.  After all, what's the difference between a government preventing you from driving over 65 mph and a government compelling you to drive under 65 mph?  Same coin.

But this is different, they argue.  The individual mandate is novel because it forces you to do something when you might have preferred to do nothing. Put differently, it regulates "inactivity," and that's unprecedented, conservatives say.

You'll hear that a lot in the coming weeks/months.  And here is the response.  It's NOT unprecedented.  Want some examples?

Guns: President George Washington signed a law that required much of the country to purchase a firearm, ammunition and other equipment in case they needed to be called up for militia service. Many of the members of Congress who voted for this mandate were members of the Philadelphia Convention that wrote the Constitution.

Civil rights: The Civil Rights Act of 1964 compelled business owners to engage in transactions they considered undesirable — hiring and otherwise doing business with African Americans.

Insurance mandates: The Affordable Care Act is not even the only federal law requiring someone to carry insurance. The Price-Anderson Act of 1957 requires nuclear power plants to purchase liability insurance and the Flood Disaster Protection Act requires many homeowners to carry flood insurance.

Other mandates: Other laws require individuals to perform jury service, file tax returns and register for selective service.

So the next time you hear some conservative spouting off that it is unconstitutional for the government to "force" someone to buy or do something they would rather not do, you know they don't know what they're talking about.

RELATED:  As for constitution worship, there's a very good article in The New Yorker about that.  It's amusing to think that the Constitution itself has not been historically a big huge deal:

Three delegates refused to sign, but at the bottom of the fourth page appear the signatures of the rest. What was written on parchment was then made public, printed in newspapers and broadsheets, often with “We the People” set off in extra-large type. Meanwhile, the secretary of the convention carried the original to New York to present it to Congress, which met, at the time, at City Hall. Without either endorsing or opposing it, Congress agreed to forward the Constitution to the states, for ratification. The original Constitution was simply filed away and, later, shuffled from one place to another. When City Hall underwent renovations, the Constitution was transferred to the Department of State. The following year, it moved with Congress to Philadelphia and, in 1800, to Washington, where it was stored at the Treasury Department until it was shifted to the War Office. In 1814, three clerks stuffed it into a linen sack and carried it to a gristmill in Virginia, which was fortunate, because the British burned Washington down. In the eighteen-twenties, when someone asked James Madison where it was, he had no idea.

In 1875, the Constitution found a home in a tin box in the bottom of a closet in a new building that housed the Departments of State, War, and Navy. In 1894, it was sealed between glass plates and locked in a safe in the basement. In 1921, Herbert Putnam, a librarian, drove it across town in his Model T. In 1924, it was put on display in the Library of Congress, for the first time ever. Before then, no one had thought of that.