Friday, September 18, 2009

The Constitutionality of Mandates

The requirement that people who do not purchase insurance will be fined by our government may not be Constitutional:
(In all major health reform bills proposed so far), those who don’t buy insurance would be required to pay a penalty, according to the various health proposals. But this mandate isn’t so much a regulation as a “tax,” and Congress shouldn’t be allowed to tax people just because they are uninsured, argue David Rivkin and Lee Casey, who served in the Justice Department during two Republican administrations. Otherwise, Congress could institute similar “taxes” on anyone who doesn’t follow other orders, such as joining a health club or exercising regularly, they point out.
Good point.



Keith said...


You thnk this is a good point? Then we can't tax people with Medicare and social security tax? Or if you own a home, the community can't levy a property tax?

Call it what you will; it could be called a user fee for when you get in a car accident and get taken to the nearest hospital you won't be getting taxpayer subsidized care. This seems like a very silly argument.

I would liken it to having to have mandated auto insurance, except you will undoubtedly argue it is an otion to own and drive a car. I guess one could given the option of whether they want access to helath care if they become injured or sick and choose to opt out if they will come with their check book to any ER or other health care provider.

Anonymous said...

Dear Dr. Wes - I realize this is totally OT. But - as a reasonably intelligent person (even though I'm a retired lawyer) - I've been following the health care reform debate carefully. My brother the nephrologist refuses to discuss it with me (I think he's afraid it will give him a heart attack). I wish that a serious medical blogger like you (or perhaps someone else) would tell me and others why the Mayo and Cleveland Clinics are held up as models that should - or more properly - *can* be emulated on a grand scale. Don't get me wrong. My husband and I have received care at Mayo in Jacksonville (where we live) - and at Mayo in Rochester. It's great care. But expensive. The only care here in Jacksonville that is more expensive for regular folks is at Shands/UF Jacksonville - where every paying patient is paying for about 5 indigents. FWIW - since we have $10k deductibles on our health insurance policies - we know what things cost (we also have a PPO discount - Mayo gives the least - 5% - other providers give anywhere from 25-50%). If you would care to contact me privately - I am Perhaps if you explain some of this medical stuff to me - I can explain some legal stuff to you - sometimes I think you know as much about law as I know about ICDs :). Robyn

DrWes said...


As Robyn appropriately points out, neither of us are lawyers (and yes, Virginia, I don't know much about law). But I would assume these other individuals would and the potential for "taxing" people who don't exercise enough, smoke, or are overweight is not one to shrug off as "silly."

Keith said...


This concept of taxing people for obesity or smoking fits with your concept of personal responsibility. But where does that stop; how about skydiving, scuba diving, playing football, using illicit drugs, tc etc. I beleive the private insurance industry already weeds these folks out form insurability anyways.

But I thought your post was about the idea of penalizing people for not obtaining insurance and whether it was constitutional. Since this will end up costing us all to subsidize these non participants (because they will eventually get sick or hav an accident), it seems only reasonable to make them pay something.

Keith said...

I think a beter comparison would be state mandated auto insurance that prevents some from running into your vhicle without having the financial wherewithall to repair the damage. If you are going to rquire everyone to have health insurance, you don't want to have them have to pay for someone elses health care on top of it. It is a big leap from madatory health insuance or a penalty payment to goverment requiring youjoin a health club or stop smoking. so I still think it is silly.

Anonymous said...

Dr. Wes - I don't think the issue is silly. People who smoke are "taxed" already in a variety of ways. Other than the obvious ways - like direct taxes paid on the product - employers in various states can legally refuse to hire a smoker. I assume the result would be the same with regard to exercise.

The issue with regard to obesity is less clear. For example - "A three-judge federal appeals panel noted that while morbid obesity is a recognized ADA impairment, simple obesity is not." Doesn't make much sense - and I guess we'll have to wait and see how the SCOTUS rules.

And mandates are ubiquitous these days. For example - I can only water my garden on certain days at certain hours. And I must produce proof of citizenship (or legal residence in the country) when I renew my drivers' license. Come to think of it - once these new drivers' license rules kick in 100%(as licenses get renewed) - a drivers' license will be about as good as it gets when it comes to proving you're in the country legally (and almost every doctor I've been to requires you to show a drivers' license). Wonder why I haven't seen this mentioned before.