|Health Care Should Be an Ordinary Market|
|BY QUIN HILLYER |
THURSDAY, MARCH 29 2012
As good a job as ObamaCare’s opponents did in pleading their case before the Supreme Court this week, they failed (except very obliquely) to use one of the best available arguments, of a practical rather than purely legal nature, to refute the administration’s central thesis.
They could have made a stronger case that there is nothing special about the health-care market.
Especially after the oral arguments have been made, it is clear that one assumption underpins the entire case, weak as it is, in favor of the constitutionality of ObamaCare. That argument is the health-care market is unique, and thus uniquely subject to “regulatory” authority of a sort that might otherwise be seen as beyond Congress’ usual powers. To turn the ObamaCare opponents’ argument on its head, the law’s supporters say that the health-care/insurance market is not similar to the markets for broccoli, or cell phones or even burial services – so even if a congressional mandate to purchase those goods or services would be unconstitutional, a mandate to purchase health insurance is perfectly legitimate.
The argument is that there is really no such thing as “inactivity” in the health-care market – there is nochoice to avoid participation in the long run. Therefore, supposedly, it is the same thing to regulate a choice to disdain health insurance as to regulate the action of buying it.
Just to reach that point, the proponents argue in effect that the health-care market is effectively co-extensive with the health-insurance market. The lawyers challenging the law did not strongly enough explain why that contention is completely bogus.
The purported problem is with so-called “free riders” – those who theoretically can afford to purchase health insurance, but don’t, and then accept free care when they do get sick or injured. Paul Clement, representing the 26 states challenging ObamaCare’s “individual mandate,” agreed that one solution would be to require such people to sign up for a “high-risk pool” when and if they do choose to seek medical attention.
Yet even that suggestion gives away part of the argument. Better, he should have explained, no reason exists to require insurance at all, even at the point of purchase; instead, all that is needed is to requirepayment, whether via insurance or by the traditional means of paying for anything else, namely cash or credit card. There is no reason, except in relatively rare “life-or-death” situations, why the same laws governing other contracts can’t govern medical care.
Michael Carvin, lawyer for the National Federation of Independent Business, very briefly touched on this point, but let it go. The problem, he told Justice Ruth Bader Ginsburg, isn’t necessarily one of people without insurance – because some people without insurance, indeed most, will pay their bills – but of those who just won’t pay. “Those are people who default on their health-care payments,” he said. “That is an entirely different [and smaller] group of people, an entirely different activity than being uninsured.”
It should be noted, first, that the problem is far smaller than advertised. Writing at the online magazine of the American Enterprise Institute on March 28, Duke University/George Mason University scholar Christopher Conover noted that the problem with non-payment which ObamaCare aims to solve has been exaggerated by a factor of 12. He says it amounts to a $70 annual additional burden on those who do pay for insurance and end up unknowingly covering the costs for shirkers. This is just two-fifths of the costs borne by the same insurance holders for the unhealthy habits of people who drive up insurance costs by failing to exercise. (This factoid, by the way, serves precisely to support the absolutely appropriate assertion by Justice Antonin Scalia that there is no relevant distinction, legally or practically, between an argument for compulsory insurance and an argument for compulsory exercise – or, by extension, other health-related behaviors such as eating broccoli.)
The legal argument of the ObamaCare supporters actually is a sleight-of-hand, saying that something which is otherwise unconstitutional becomes allowable due to real-life, practical considerations. The counter-analyses of Mr. Conover and Justice Scalia show even those real-life assumptions to be invalid.
There are numerous other ways, without insurance, to handle the free riders at issue. Ordinary contract law allows plenty of means for providers of any good or service to recover unpaid bills, including access to courts. In other instances, governments have no problem forcing those who can afford to pay to do so – as they do, for instance, by garnishing wages of non-custodial parents who renege on child-support requirements. In fact, Massachusetts then-Gov. Mitt Romney’s original draft of his state’s health-care law actually included a provision (rejected by state lawmakers) allowing wage garnishment from non-impoverished health-care free riders.
“The distinction between ‘personal responsibility’ and ‘individual mandate,’” Heritage Foundation senior research fellow Edmund Haislmaier told me, “is that the former is about ensuring that people who can pay their own bills, do so, while the latter is about forcing people to buy insurance that pays someone else's bills.” ObamaCare does the latter, for no good constitutional reason. Indeed, even apart from constitutional considerations, the individual mandate is a solution in search of a problem.
That the President and Congress would try to solve this rather negligible “problem” by trampling on traditional notions of liberty, and by expanding federal power to an extent never before allowed, is an affront to right reason and to the entire American tradition.