Death and taxes may be inevitable in life, but in politics what's inevitable is that you will have to face public opinion and the Constitution. President Obama is rightfully having to confront both over the worst flip-flop of his presidency: his endorsement of mandatory health insurance purchases.
As the New York Times reports, courts are calling into question mandatory health insurance's constitutionality.
The courts are right, and so was Obama when he opposed mandatory health insurance purchases on the campaign trail on the grounds that people want health insurance, they just cannot afford it.
Not only did the President betray a campaign pledge, he turned his back on public opinion -- which runs 2 to 1 against mandatory health insurance purchases.
A federal judge in Florida has made clear the mandatory purchase law tests the limits of the federal government's power. This is no right wing judicial conspiracy. Loyola Law school professor Carl Manheim and I, both of us progressives, made the same arguments in a Los Angeles Times oped two years ago when Obama, as a candidate, opposed mandatory health insurance purchases and Hillary Clinton supported it.
Our cautionary arguments then sound a lot like the preliminary thoughts of Roger Vinson of the Federal District Court in Pensacola, Fla now. Here's what we wrote in the Los Angeles Times:
Are health insurance mandates constitutional? They are certainly unprecedented. The federal government does not ordinarily require Americans to purchase particular goods or services from private parties.
The closest we come is when government imposes a condition on the grant of a discretionary benefit or permit. For instance, in most states, you must have auto insurance to drive a car, or you are required to install fire sprinklers when building a new house. But in such cases, the "mandate" is discretionary -- you don't have to drive a car or build a house. Nor do you have a constitutional right to do so.
But Americans do have a constitutional right to live in the United States. Accordingly, neither federal nor state governments can require you to purchase health insurance as a "condition" for residency. The Supreme Court has drawn a distinction between requirements that are flat-out imposed by government and those imposed as a condition for discretionary benefits.
One Washington, DC "liberal" group Families USA, which has gotten quite chummy with the insurance companies and drug companies during the reform debate, sent out an email blasting the judicial assault on "reform." The truth is mandatory health insurance is the regressive, not progressive, part of the new federal health care law.
The progressive part of the law, squarely within the confines of the Constitution and supported by strong public opinion, are the reforms that rein in insurance company abuses and provide subsidies to the poor to get health coverage. Progressives should hope mandatory health insurance is voided by the courts because it makes the rest of health care reform much more palatable. Any coercive use of government to help a hated industry that is opposed by more than 60% of Americans is not progress.
The courts would be right to say the government went too far in requiring all Americans to buy mandatory health insurance too. As Carl Manheim and I wrote defending Obama's principled stand against mandatory insurance in 2008:
In fact, under the law, there's a big difference between participation in a government health program funded by taxes and privatizing such a program, with individuals forced to purchase private health insurance.
Taxation involves representation, which is the case when Congress appropriates money and controls a government program for the general welfare. This describes Social Security and Medicare. But government cannot simply delegate its taxing powers to private business.
What representation do we have in the insurance firms whose products we would be required to buy, at prices and terms they set? Can we vote out an insurer's board of directors for denying claims or paying its CEO a multimillion-dollar salary? Here too the Supreme Court has drawn a distinction between taxes imposed by government and mandatory fees set by entities with private interests.
A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine or obtain treatment outside of the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."
Requiring Person A to give money to Person B is a "taking," whether or not something of value is given in return. Let's say the state required every resident to buy milk, on the rationale that milk consumption benefits public health. That's either a constitutionally forbidden taking (of money) or a violation of due process.
These constitutional rights aren't absolute. Given a compelling enough reason, government can interfere with your person and property. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling. We are not aware of any opt-outs for most people in the mandatory health insurance plans being discussed.
For the White House and Democrats, embracing this inevitable truth should come sooner rather than later.