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We the People: More than the general welfare

Published: November 13, 2009
Section: Opinions


I really don’t want to write about health care. Partly because it’s been done a billion times before, partly because it shouldn’t be my place to cover any issue which is dominating the political sphere, but mostly because there are a lot of crazy people just itching for a fight. So I am not going to write about health care. Instead I wish to explore a much more subtle issue: The law.

Amidst all of the news coverage of the health care bill narrowly approved by the House of Representatives this week: The newspaper articles, radio advertisements, television exposés, and a strange whooshing sound that may have been Ron Paul escaping back to the dimension from whence he came, I noticed a rather innocuous post by a friend of mine on Facebook. He wondered if, quite apart from the bill being a good or bad idea, a mandate by the government that people carry some form of health insurance was a legitimate exercise of state power. I shall not take a position on the bill, but I do believe that there are four ways to theoretically justify this government action.

As I understand it, this requirement functions as a necessary prerequisite to abolishing pre-existing conditions as a reason for denial of care. As we have all heard by now, a pre-existing condition is any sort of medical issue that can be used to deny health insurance coverage to a patient in need of care. It is a way to prevent people from buying insurance after they need an MRI or expensive drugs. It’s the same reason you can’t buy auto insurance after you have had an accident, or flood insurance when your basement is half full of water. The basis of insurance is purchasing risk protection in advance, a practice that should be a reasonable one.

The problem is that the premise of pre-existing conditions is being abused to deny coverage in legitimate cases. Patients found that the health insurance they had been buying for decades suddenly did not cover them, mostly either for issues beyond their control, or unrelated to their current needs. In an attempt to eliminate pre-existing conditions as a reason for denial, the government has proposed that everyone must carry coverage in advance, or there would be nothing to stop someone from buying a policy after they get sick.

I think the first, and broadest justification for government mandated health coverage is basic social contract theory. All citizens give up certain rights in return for protections by the government. It is reasonable for the government to act in accordance with what rights rational people would give up in return for other protections. Specifically, people seem willing to abandon their right to not have health insurance in return for better health care. Certainly this swap burdens some people more than others, but not many laws apply equally to all people. Although very theoretical and nebulous, the idea that people would give up this right to a government, at least in part, legitimizes this action.

The second, slightly narrower justification for this action is democracy. President Obama, a third of the Senate, and all of the members of the House of Representatives were elected in 2008. One of the key issues of that election was health care, and people voted on who their representatives would be based on a number of issues, health care among them. Many of the proponents of this bill were sent to Washington D.C. specifically to reform healthcare. Exercising the will of the people is an important function of a republican government. Just because Glenn Beck starts crying, or yelling really loudly, or holding his breath until he turns blue, does not mean that there is no longer widespread popular support for this idea. Surely the legitimate role of government is to enforce the will of the people, and to promote the general welfare. To that end, an appropriate exercise of state power should be in accordance with the general will.

Third, I think that there is a legitimate case to be made that the insurance companies have not been competing, and have de facto been colluding with each other, which justifies some form of anti-trust reform. They all deny coverage in the same manner, and for the same reasons. Unfortunately health care is not a real “market” decision because people can not rationally decide not to have health care. (I should note: People could rationally decide not to have health insurance, but only in a case where they are assured protection. Essentially, you cannot ask somebody to gamble with their life and expect a rational decision. Even people who claim to not want insurance still expect to be treated in an emergency room if hit by a bus). As a result, there is no length to which the insurance industry could go in the status quo that would cause people to not seek health insurance. The government has a legitimate role in protecting the people from corporations large enough and important enough to exert coercive power on the people.

Finally, and most importantly, the federal government is authorized to regulate commerce among the several states in the Constitution. Congress is given the authority to make laws necessary and proper for carrying into execution the forgoing powers. Certainly the health insurance industry is subject to congressional action. This part of the law seeks to remedy a commercial issue: The denial of coverage based on pre-existing conditions. The provision that requires people to carry insurance is a necessary prerequisite to curing that particularly harmful action in a manner that is not subject to abuse.

I believe that there is an argument to be made that health insurance carried by a single person (mandated by the government) is not interstate commerce. It sounds like a great argument, and a usual fallback of pretty much anyone with a brain. It would logically, seem to be the case, but unfortunately, the court feels differently–and for some good reasons. The actions of a single citizen would affect the whole of a company’s insurance pool, an action which does not fall within any single state. Accordingly, the Supreme Court ruled in Wickard v. Filburn that actions taken by a single citizen within a state can have an effect on interstate commerce, and that the government can regulate them.

I am sure that as the government progresses with its legislative process, more legal challenges will be mounted. These should be adjudicated based on their specific facts by the court. The important question for common citizens should now become whether the congressional policies are a good idea, and how we should model a reformed health care system.