Compare Education and Health Care Reform:
"The first compulsory education law in the American colonies was established in Massachusetts in 1647. The Massachusetts General Court passed a law requiring every town to create and operate a grammar school. Fines were imposed on parents who did not send their children to school and the government took the power to take children away from their parents and apprentice them to others if government officials decided that the parents were 'unfit to have the children educated properly'."
Compulsory education was not part of early American society, which relied instead on private schools that mostly charged tuition. The spread of compulsory education in the Massachusetts tradition throughout America ... has been credited to General Richard Henry Pratt."
Schooling is compulsory for all children in the United States, but the age range for which school attendance is required varies from state to state." [From http://en.wikipedia.org/wiki/Compulsory_education#United_States.]
Compare this to the recent health care reform legislation. How, conceptually, is it any different? How, constitutionally, is the concept any different?
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I don't know for sure without looking it up, but I believe that one difference is that compulsory education laws are all *state* laws and not federal. Under the US Constitution, states retain power over health/safety/welfare/morals; compulsory education fits right in with that, as would a health insurance mandate if a *state* passed one for its citizens.
ReplyDeleteAs I understand it, a potential issue with the *federal* health insurance mandate is that it may not be allowed under the powers constitutionally delegated to Congress. Yes, the Commerce Clause covers a lot of territory, including what people decide to grow in their family gardens for personal use, but as far as I know there really isn't any precedent for using the Commerce Clause to justify forcing individuals to engage in commerce (by buying health insurance). It will be interesting to see what happens if and when the challenges get to the courts.
P.S., I am in favor of health reform and support the bill that was passed, though I would have much preferred a bill with strong voluntary public option, e.g., optional medicare-buy-in eligibility starting at birth.
The health insurance mandate requires you to *purchase* part of a service, not merely become a participant in a program. This requires that individuals who might not otherwise join a feature of commerce become a part of it.
ReplyDeleteIts different from other federal programs because instead of regulating an industry where people opt in, and are then regulated, this mandate compels people to join the stream of commerce that empowers the federal government to regulate it.
The health insurance mandate does not require you to *purchase* insurance Ray; it requires you to have insurance. Many people have insurance for free through either a government assistance program, a community outreach program, or through their employer. It is true that many people have to purchase or otherwise pay a premium for health insurance, but it is important to distinguish that the mandate does not require everyone to purchase insurance. If you have insurance, then you've met the requirement, whether you purchased that insurance or whether you've gotten it for free. Also, there is a waiver to the mandate available for individuals who don't qualify for free insurance but can't afford to purchase a premium.
ReplyDeleteAutumn- I think you are right about everything you've said. I wonder, however, how the legislation frames state-participation; i.e. whether it uses taxing and spending regulations to compel state participation, and why it does not seem to frame the mandate in that context.
ReplyDeletePlease continue to discuss!
Ray-
ReplyDeleteYou said:
"Its different from other federal programs because instead of regulating an industry where people opt in, and are then regulated, this mandate compels people to join the stream of commerce that empowers the federal government to regulate it."
I see what you are saying perfectly, however, there may be another perspective. The mandate is enforced, I believe, by a federal tax penalty for those not participating in the mandate. It seems, therefore, that one who does not file federal income taxes is beyond the reach of the mandate. Isn't it true that if a person is employed in the US, receiving income and paying federal income taxes on it, then that person is already just as compelled to join the stream of commerce with regard to filing taxes? If so, anyone who would be within the reach of the mandate has already been compelled to join the stream of commerce in order to participate in filing their taxes.
It is true that people have the option to file and pay their own taxes directly with the government, without using a preparation service and only using materials such as paper, ink, envelopes, and perhaps postage from outside the US stream of commerce. However, this is analogous to a person using free health care programs to satisfy the mandate or receiving a waiver for the mandate.
Furthermore, people who do not need to file taxes are seemingly immune from both the mandate to file taxes (by definition) and the mandate to obtain health insurance.
Of course, both "mandates" are contrary to pure-libertarian ideals. I merely present the above argument to explore the idea that the federal government already compels citizens to engage in commerce to the same extent required by the health insurance mandate.
P.S. I am just playing devil's advocate here to explore all the possible arguments and perspectives that might come up.
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