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The trouble with Health Care
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The trouble with Health Care

December 16, 2010, 6:30 pm
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The government cannot compel a person to purchase a consumer product
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The trouble with Health Care

By Reynold N. Mason JD


Atlanta, Dec.16, 2010.    Today in Pensacola, Florida, the Obama Health Care Law faces yet another challenge. On Monday the law suffered a TKO in federal court in Virginia at the hands of Judge Henry Hudson, who ruled that the provision of the law that requires every American to purchase health care insurance or face a fine is unconstitutional.  There have been two other challenges to the law thus far, both of which found no constitutional problem with it.  That is the nature of the law. Judges bring to the bench their biases, their perspectives and their own judicial philosophy.   So different outcomes on the same question are not uncommon.  Fortunately for us, the U.S. Supreme Court is the final arbiter of what is or is not in harmony with the constitution.  The nine justices will ultimately decide the question.  It is difficult to predict the ultimate outcome of this legal battle.  But scholars of the judiciary whose focus is the U.S. Supreme Court may not be entirely clueless.   Take Judge Hudson, who on Monday found the law unconstitutional in part, he was appointed to the court by George W. Bush.  The two earlier rulings both upholding the law, were handed down by judges who were democratic appointees.   There are presently four solidly conservative justices on the high court, Roberts, Alito. Scalia and Thomas all appointed by republican presidents.  Four of the justices are democratic appointees. But Justice Kennedy, though appointed by President Reagan has been a double edged sword. He is considered a swing vote, often casting the deciding vote on important issues such as the right to own hand guns. He is the wild card who seems to defy labels as either liberal or conservative.  He could well be the deciding vote when Health Care Law reaches the high court.

                        What is legally wrong with the Health Care Law?

The problem with the law is the penalty that it imposes on every American who does not purchase health insurance.  The Obama administration, dreading the use of the “T” (Tax) word, initially sold this imposition as a penalty.  But when faced with legal challenges tried to pass it off as a tax.  Virginia argued that forcing a person to purchase a product from a private vendor is beyond the limit of congressional power.   Congress cannot pass laws willy nilly.  The authority to pass laws must be premised on constitutional authority.   Congress has for years regulated unchallenged, all sorts of economic activity using its powers under the commerce clause.  Congress’ power under the commerce clause was employed to break the back of Jim Crow in the old South.  Even a mom and pop motel that refused to admit blacks could be compelled to do so, never mind the fact that it was a lone motel with a dozen rooms off the interstate .  Congress has used its commerce clause power to clamp down on all sorts of activity of which it disapproved.  The commerce power has been the fall back position over the years; so broadly interpreted by the court that its reach and scope are enormous.  It is akin to using the IRS to bring down Al Capone. It is the constitutional provision of last resort.

                        Social Security and Medicaid are not voluntary either.

Americans cannot opt out of social security or Medicaid either but these programs have been upheld by the court.  The problem is this.  In every other instance, the power under the commerce clause has been used to regulate economic activity.  The government’s  position  is that without forced participation in the program, people will not purchase insurance until they become ill.  And the decision not to purchases insurance would have an impact on commerce.  The problem for the government is that what it is attempting to regulate is not commercial activity, but rather passivity.  A person’s decision not to purchase a product, for example, is not commercial activity that may be regulated.  Were it otherwise, the government could compel us to buy GM cars if it viewed the viability of GM as beneficial to the economy. It could compel us to make the choice it chooses.   It is true that without full participation, the financial foundation of the plan will collapse because the revenue base will  insufficient to pay for coverage for the entire pool of insured people.   Usually, this argument caries the day.  All the government need is a showing that its scheme is a rational way of achieving its purpose.  But that argument, sufficient for the judges who earlier upheld the law, was not enough for judge Hudson.   He struck down the minimum required coverage provision of the law, without which the whole scheme is not viable.  The penalty for failure to buy insurance is clearly necessary to the viability of the Health Care Law.  And though the provision penalizes persons who do not purchase insurance, it is necessary to the scheme and is a beneficial use of the commerce power.  The problem, judge Hudson found, is that in this instance, the law violates an independent constitutional provision.  It compels unwilling individuals to submit to the scheme.  The decision not to buy insurance is not commercial activity, not a self-directed, affirmative act of free choice.  Virginia’s argument that one’s refusal to purchase insurance is not commercial activity and does not arise out of commerce clause won the day. The imposition is a penalty, plain and simple, disguised as a tax designed to force compliance with the law’s mandate. The purpose of the regulation is purely regulation and any revenue generated is purely incidental.

                                    Why the argument is the first place?

Most Americans would agree that America has the world’s best medical system. The problem is that it is not accessible to the vast majority of citizens who need medical help.   Democrats have been trying for decades to enact universal health care law somewhat like Canada’s to make health care affordable and accessible  to every citizen, rich or poor.  This is the root of the problem.  Republicans, who generally want limited government, look upon this program as an unwarranted expansion of governmental power, that would lead to unbridled interference with  private enterprise.  Social legislation, such as Social Security, Medicare and Medicaid promote the common good.   Those programs level the playing field by promoting the interests of the poor, the disadvantaged, the aged, the infirm and disabled.  Republicans would rather rely on the market place to smooth over these rough edges.  Under this model, people are expected to take responsibility for themselves and members of their family dependent upon them. 

President Obama promised in his campaign, to fundamentally transform America.  If to do that he must increase taxes on the wealthy to pay for social programs, then so be it, because it is for the greater good.  And if he cannot get the cooperation he needs, then compulsory cooperation is necessary.  He sees no problem with compelling unwilling Americans to purchase insurance, because everyone will someday need health care. As far as the president is concerned, private rights must yield to the test of social expediency; they must be judged by their fruits. He meant it when he told Joe the Plumber that we must redistribute the wealth. 

                                       Getting paid to do nothing

Republicans who preach self help, individual responsibility and limited government would oppose social legislation not because they are heartless, but because they believe that is a hindrance to self help.  Conferring unearned benefits on people saps their ambition and stifles initiative. The republicans have a point.  I personally know a New York woman who collected welfare for nearly ten years while living in a home in Brooklyn owned by her children’s father. He was the owner of a successful hardware business in Brooklyn. She got off the dole only when Mayor Giuliani instituted “workfare” and she was required to report for work.  Not long ago, an individual could be born into a family receiving welfare and never escape the grip of dependency.  While in practice in New York, I had occasion to encounter tenants in city-owned buildings who, despite paying reduced rent and receiving rent money from welfare nonetheless, fell deep into arrears.  One young woman told me that when she turned twenty-one she would move out and get her own budget and her own apartment; paid for, of course, with taxpayers money.  She was a pitiable addict trapped on the public dole in a lifetime of dependency, every bit as powerless to kick the habit as cocaine addled drug abuser.    Whoever said that the greater social loss is not squandered money, but squandered ability and character was wise indeed.  Why should an able-bodied person go idle when there is work to be done?

The liberal left is so vociferous in its opposition to any encroachment on entitlements that the opposition is cowed into silence, lest they be labeled racist.   Every able-bodied person subsisting on public money is an argument against free benefits.   It would be far more productive and in the interest of society if the unemployed, for example, were put to work or in retraining  programs , rather than simply pay them for doing nothing.   We need to give people an incentive to achieve by their own labor, not have the wheels greased for them. I share this sentiment and, I cannot be accused of racism on this score.

I have had occasion to examine this issue because I am finishing a book about my upbringing.  I learned lessons from growing up in a poor family in a little village with unpaved, unnamed dirt roads, attending a one room school house the size of a basketball court,  and from being taught by teachers who themselves had no schooling beyond grade school.  In the 60’s, where I grew up, one attended high school if one’s parents had the ability to pay the tuition.  With few exceptions, if any, my contemporaries were the first in their family to be educated beyond elementary school.  Yet, I believe these conditions were the driving force that stiffened our resolve and gave us the motivation needed to succeed in the wider world.  Family and kinship sustained us. They were our strongest bonds, our life line. We had no welfare, no healthcare and social security or SSI. We were our parent’s social security. We were steeled by difficult circumstances.   Not surprisingly, at a reunion some years back, I found a generous sprinkling of elites among my high school classmates.  In graduating class of about 100 there were some who had earned PhD’s, several medical doctors, dentists and one or two lawyers.  The vast majority of my classmates have advanced degrees and about 90 % have at least a bachelor’s degree. The only explanation I can see for this phenomenon is our work ethic, our motivation for self fulfillment. The circumstances of birth was not a hindrance.

Rather than villify those who call for less spending on entitlement programs, Americans will do well to heed the simple lesson that hard work makes a wealthy man.   In the words of Andrew Carnegie it would be a good thing if every boy had to start in poverty and make his own way.  If nothing else, that would stiffen his spine and teach the lesson that by the sweat of one’s brow one shall eat bread.

Author: Reynold Mason
Reynold N. Mason teaches law courses at Zenover Educational Institute In Atlanta, Georgia. He has been a judge on New York City Civil Court and, a Justice on New York State Supreme Court. Mason has been an adjunct professor of law at Medgar Evers College and Monroe College in New York. He has authored several legal opinions published in New York Miscellaneous Reports and New York Official Reports as well as the New York Law Journal. He lives in Atlanta.
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