As tempting as that may sound to the increasing number of Americans living in poverty, if Congress made it a law, it would probably be judged by the current Supreme Court as an unconstitutional attack on those of us who can afford steak.
But now that the Supreme Court has agreed to hear the challenges to the new healthcare law, the constitutionality of which is being attacked primarily based on its requirement that everyone purchase health insurance or pay a fine, I am, with admitted ignorance of both constitutional law and the workings of the court, ready to write my opinion.
First, should the federal government have the right to mandate that people must buy a product they might otherwise not want? Clearly, state governments have that right, for example in requiring car owners to buy automobile insurance. And the Constitution does indeed distinguish between areas of governance in which the federal government cannot legislate, leaving many matters solely to the discretion of each state. So I assume that if the court rules the healthcare federal mandate unconstitutional, each state could individually still require (or not) the purchase of health insurance, as is the case in Massachusetts (much as Mitt Romney might deny it). This might be an acceptable solution, were it not for the chaos that would ensue.
It seems to me the federal government already has the right to force people to pay for (that is, buy) things they might not want. You pay for social security whether you want it or not, which is economically necessary if the program is to work, just as mandated healthcare insurance makes it possible for those who cannot afford it to ultimately pay for health care they now get free in hospital emergency rooms as well as allowing those with pre-existing medical problems to get health insurance otherwise denied them. (Ironically, the law requires free care for indigents which is paid for via taxes largely by those who may never want or need the benefit.) I understand the distinction that the healthcare challenge is based on the questionable concept of mandating that people buy the product of a privately owned entity (an insurance company) and that the precedent thus set might one day require all citizens to buy a Ford if it were deemed in the national interest that the Ford Motor Company sell more cars. But at the end of the day, I think adjudicating the healthcare mandate as an issue of commerce is a constitutional copout.
I believe the fundamental purpose of our Constitution (my minimal familiarity with the Federalist Papers notwithstanding) is to define a government with the obligation and power to protect its citizens’ basic human rights under the headings (written into the Preamble) of justice, tranquility and general welfare while protecting our personal liberty from the encroachment of the government itself. For me, the question should always be what is (or is not) a basic right and how much individual freedom should we forego to insure such a right? This covers everything from the minor consideration of allowing government to deprive us of the liberty to drive our cars any way we wish, forcing us to stop at red lights in order to protect the rights of others, to such major issues of allowing government to force us to give up not just a little liberty, but in effect our lives, by ordering a drafted citizen to charge a machine gun nest in defense of our national interest.
In the case of health care, I think effective medical attention is a basic right of every citizen (part of that quaint little idea of “life, liberty, and the pursuit of happiness”) and that if mandating that every citizen buy insurance to access health care is the only effective way to pay for it, then requiring everyone to buy such insurance (or pay a penalty if not) becomes a reasonable compromise with our liberty.
I suspect I know four Justices who will agree with me and four who will not, in which case it may all depend on Justice Kennedy. And that’s about as unconstitutional as things can get.
But that’s another story.