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Is healthcare reform (or more specifically the individual mandate) unconstitutional?

"The objections to health care reform are ultimately founded not on a genuine concern about preserving state prerogative, but on a libertarian opposition to compelling individuals to act for the collective good, no matter who imposes the obligation. The Constitution recognizes no such right, however, so the opponents have opportunistically invoked “states’ rights.” But their arguments fail under either heading. With the help of the filibuster, the opponents of health care reform came close to defeating it politically. The legal case should not be a close call."

"The individual mandate is aimed at so-called “free riders”—people who fail to get insurance, and then cannot pay the cost of their own health care when they need it. Under our current system, in which hospitals must treat people regardless of ability to pay or insurance coverage, hospitals are able to recover only about 10 percent of the cost of treating uninsured individuals. That cost is ultimately borne by the rest of us. The federal government picks up much of the tab, and hospitals and insurers pass on the rest to their paying customers in higher fees. The Congressional Budget Office estimated that in 2008 the uninsured shifted $43 billion of health care costs to others."

"Without the individual mandate, the health care law’s more popular reforms—such as the bar on insurance companies denying coverage because of “preexisting conditions”—would actually make the insurance crisis worse. Knowing that insurers could not deny coverage or charge more for preexisting conditions, people could wait to buy insurance until they were sick. But then more and more of the people insured would be the sickest, defeating the very purpose of insurance—to spread the risk by creating a pool of funds that can be drawn on for payments. Premiums would skyrocket, meaning that even fewer people could afford insurance, and that would in turn induce still more people to opt out. As Wake Forest University Professor Mark Hall testified in Congress, “a health insurance market could never survive or even form if people could buy their insurance on the way to the hospital.”

"This is not just an academic prediction. When in 1994 Kentucky enacted similar reforms regarding preexisting conditions, but without an individual mandate, insurance costs rose so steeply that they became untenable, and insurers pulled out of the market altogether. Kentucky was forced to repeal the reform. Initiatives in New York and New Jersey faced similar problems. In Massachusetts, by contrast, where health insurance reform was coupled with an individual mandate, the system has worked; since 2006, insurance premiums there have fallen 40 percent, while the national average has increased 14 percent."

"In short, Congress had ample authority to enact the individual mandate. Absent a return to a constitutional jurisprudence that has been rejected for more than seventy years, and, even more radically, an upending of Chief Justice Marshall’s long-accepted view of the Necessary and Proper Clause, the individual mandate is plainly constitutional."

Is health care reform unconstitutional?


I copied a few paragraphs that stood out to me above, but the article is two pages long and goes into more detail about previous court cases, etc.

Your thoughts?


Asked by pam19 at 10:51 AM on Feb. 2, 2011 in Politics & Current Events

Level 30 (42,186 Credits)
This question is closed.
Answers (46)
  • So people do want to be forced to carry insurance, yet when they NEED care they show up at a business that MUST treat them- This glitch is putting those in the business of providing care in the hole- Those fees are offset by the rest of us paying folks....many of whom are tired of shouldering the burden. With fewer people working, the burden is just too great. You can not have it both ways; refuse to have HC and then expect America to provide you with care and p/u the's just not sustainable.

     We need true HC reform- affordable care , and decisions that are made between a patient and their HC provider...not some suit in a glass office with a view of downtown.


    Answer by Sisteract at 5:52 PM on Feb. 2, 2011

  • They have no constitutional basis to support the mandate.

    NOT buying something is not considered commerce.

    And insurance can not fall into the category of INTERSTATE because it can NOT be bought across state lines.

    Answer by Carpy at 11:36 AM on Feb. 2, 2011

  • My body, my choice, right? Why is it your decision whether or not I carry health insurance? If I don't want to take care of myself medically, why do you get a say?

    No one would tell a poor person she had to have an abortion, even though the taxpayers will have to fund that baby....

    Answer by lovinangels at 11:45 AM on Feb. 2, 2011

  • MA requires it

     And the people of MA should decide if they want to fight the constitutionality of it. However, if you researched US Federal/State law~ states have "police power", which can authorize states to regulate where the federal government, which has limited/enumerated/powers~ cannot.


    Answer by grlygrlz2 at 11:49 AM on Feb. 2, 2011

  • Why should anybody be forced to pay for "free-riders" through increased insurance premiums and hiked up health care bills?
    At that logic, why should people be force to pay for food for people who can't afford it?

    Answer by lovinangels at 12:15 PM on Feb. 2, 2011

  • Yes...even OBAMA thinks it's WRONG to force someone to purchase something that they do not want/have!! LOL


    Both of us want to provide health care to all Americans. There's a slight difference, and her [Hilary Clinton] plan is a good one. But, she mandates that everybody buy health care. She'd have the government force every individual to buy insurance and I don't have such a mandate because I don't think the problem is that people don't want health insurance, it's that they can't afford it," Obama said in a Feb. 28, 2008 appearance on Ellen DeGeneres' television show. So, I focus more on lowering costs. This is a modest difference. But, it's one that she's tried to elevate, arguing that because I don't force people to buy health care that I'm not insuring everybody. Well, if things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t."

    Answer by LoriKeet at 12:09 PM on Feb. 2, 2011

  • In my opinion it is unconstitutional.

    Answer by SweetLuci at 11:54 AM on Feb. 2, 2011

  • Commerce clause, “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

     Regulate the commerce among the states. If someone chooses NOT to particpate in the commerce (purchasing of a product/servicce), how can they be MANDATED/REGULATED?.... Government can regulate those who CHOOSE to particpate in the commerce. But they cannot mandate those who choose NOT to particpate.


    Answer by grlygrlz2 at 11:57 AM on Feb. 2, 2011

  • Why should anybody be forced to pay for "free-riders" through increased insurance premiums and hiked up health care bills?


    I've got two words for you....TORT REFORM!!

    Answer by LoriKeet at 12:10 PM on Feb. 2, 2011

  • You realize that "Tort reform" is not a feasible solution in terms of healthcare right? How would you apply it?

    Fraudulent and frivolous lawsuits would be thrown own, and the petitioner of said lawsuit would be heavily fined and/or jailed. You see, when people make gross claims against medical professionals and the juries award massive monetary awards, the insurance companies will pass those costs on to their subscribers. I say we crack down on such claims, just like the auto industry did/does, and lower costs follow.

    But that will never happen, since the smarmy, ambulance chasing, trial lawyers, like Jonathan Edwards, are ALL OVER The Hill!!

    Answer by LoriKeet at 12:36 PM on Feb. 2, 2011