Wacky Wednesday--Obamacare is Constitutional

Note: Before reading the following arguments, please understand that they are not what I believe. On Wednesdays, I deliberately argue for wrong ideas, challenging my listeners to call and defend the obvious right answer, which is usually far harder than one would expect. This is a summary of what Wacky Andrew will be arguing, not a representation of what real Andrew believes.

~Under the Commerce Clause, the Federal Government can regulate economic activity.

~No one disputes that buying health care and buying health insurance both constitute economic activity.

~Therefore, the Federal Government can certainly regulate interstate commerce by requiring insurance companies to treat people with pre-existing conditions.

~But in doing this, the Federal Government must also prevent the free-rider effects of people only purchasing insurance after they have already gotten injured or sick.

~The only feasible way to prevent these effects is to require all persons to carry health insurance.

~This has the additional benefit of putting everyone’s money into the pool of health insurance premiums and preventing the currently massive costs to health care providers of uninsured persons receiving emergency care at the cost of insured persons.

~In other words, in order to insure the benefits of a functioning national market for a product which is approximately one sixth of the GDP, it is certainly necessary and proper for Congress to mandate that all individuals carry approved health insurance plans.

~If they had enacted this as a tax credit for people who do pay for insurance rather than as a tax penalty against those who do not, we wouldn’t even be having this debate.

~Given that no individual can be sure he will not burden the health care system with the costs of his own care in the near or distant future, no individual should be entitled to ride for free as that system is maintained and paid for by others. This is especially pressing since health care providers are generally obligated to provide (at least emergency) care for people regardless of their ability to pay.

~We require car insurance as a condition of driving.

~This is no more intrusive (and certainly less unusual and costly) than Social Security.

~The idea that this is an unprecedented expansion of federal power against people only engaged in economic inactivity is neither supported by the language of the Constitution nor by the case law.

~The idea that Congress can only do things “expressly” given in Article 1:8 is inaccurate since the drafters of the 10^th Amendment had the chance to use the language “expressly” and did not precisely because they thought it would limit the Federal Government too much.

~Congress can require people to do many things: register for the draft, participate in a jury, fill out a tax form, and participate in the Census.

~As a condition of participation in the economic system, Congress requires people to do a vast number of active things in complying with Federal workplace laws of numerous sorts.

Resources:
Federal Judge: Obamacare void (Heritage)

Federalist 42
Federalist 45
Congressional hearings (C-SPAN)