The "big day" of oral arguments before the Supreme Court in the health care debate got under way today and the central point of contention is the individual mandate. Now, essentially, the individual mandate is the requirement that everyone pay for health care in some capacity, either through their work or some other means. This "requirement" for individuals to pay for something is what is causing the big constitutional brouhaha, with opponents to "Obamacare" maintaining that the individual mandate is unconstitutional and that not only should the mandate be struck down, but the entire healthcare reform framework should be dismantled and we should return to the state of healthcare in this country before Obama took office.
The first, major irony of the individual mandate argument is that, while the Republican party is the biggest opponent to Obamacare and the ones making the argument that it is unconstitutional, the individual mandate is, itself, a Republican idea. Back in 1993, when Bill Clinton was proposing a national healthcare framework, his administration wanted the responsibility for providing healthcare to fall on the employer. Republicans balked at this idea, saying it would impose an unfair burden on businesses. Their solution was the individual mandate. The argument that republican legislators made then was that individuals should be responsible for their own healthcare and, should they find themselves in a situation where they needed healthcare, they should bear the financial burden of acquiring it. In fact, the individual mandate was a perfect fit with the popular conservative position of promoting individual accountability and personal responsibility. Top Republicans like Newt Gingrich supported an individual mandate as recently as 2008.
Now, obviously, the thing that has changed since Republicans overwhelmingly supported the concept of an individual mandate for healthcare is the person who suggested it. In 1993, the Clinton administration was opposed to an individual mandate, so the Republicans supported it. In 2008, the Obama administration supports an individual mandate, so the Republicans are opposed to it. In fact, not only are they now opposed to the idea they originally proposed a decade and a half ago, they contend that it is an unconstitutional abomination and must be defeated at all costs.
The argument that the Obama administration is using to defend the individual mandate is the same one the Republicans used when they first proposed the idea back in 1993, the commerce clause. The commerce clause is a section of the constitution that gives congress the authority to regulate commerce in 3 principle areas - foreign nations, the states and among tribes. When the commerce clause is applied to states, it's referred to as the interstate commerce clause. The commerce clause itself is typically paired with the necessary and proper clause, which grants congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
Basically, the necessary and proper clause says that congress has the authority to make laws as needed in order to carry out the powers congress is granted by the constitution. In the case of the interstate commerce clause, the necessary and proper clause grants congress the authority to make or change laws so that they can have the power to enforce actions taken under the commerce clause.
So, what that means is, if the Obama administration can prove that the individual mandate is allowed under the interstate commerce clause, then the necessary and proper clause grants them the power to make or change the law in order to enforce the individual mandate at the national level.
The argument against the constitutionality of the individual mandate is that, if the government can "make" you buy healthcare, then what's to stop them from "making" you buy anything else they deem important? The common argument is broccoli, if broccoli is good for your health - much like having healthcare is - then why couldn't the government force you to buy broccoli?
The counter-argument is that you aren't required to eat broccoli the way that you are required to have healthcare. But, the response to that has been that you are required to eat, so what's to stop the government from simply forcing you to buy food?
This is where it's essential to understand that the healthcare market in this country is not like any other market at all.
Yes, you need food to eat, the same way a person in a car accident may need healthcare in order to survive or heal properly from their injuries. However, food producers have not taken a sworn oath to provide food to anyone who needs it, so long as they are capable of doing so. Doctors have taken such an oath, the Hippocratic Oath. Under the Hippocratic Oath, doctors and medical professionals swear to use their knowledge and skills for the benefit of all society. Additionally, hospitals are bound to treat any patient that enters their doors, regardless of their ability to pay for that care. This is one of the biggest reasons why healthcare costs are currently so high, in fact, because anyone who is sick or injured can walk into a hospital or clinic and receive treatment and, if they are unable to pay, the costs are then borne by the hospital and passed on to other patients.
Yes, you need food to survive, but if you are hungry and walk into a supermarket, they have no obligation to give you free food. There simply is no other industry in the country where an essential service is obligated to anyone who seeks it, regardless of their ability to pay for it, they way healthcare is.
This could be the thing that separates a healthcare mandate specifically from a broader freedom to impose arbitrary mandates at will, which is what opponents of the mandate are concerned about. The argument against the mandate is that "If we let congress force people to buy health insurance, then what else can congress force you to buy?" Well, if healthcare is a unique industry, the only one where the service providers are required by law to provide that service to anyone who seeks it, regardless if their ability to pay, then the power to mandate could be limited specifically to this very unique circumstance.
In other words, the simple solution to the fear of widespread abuse of the power to impose individual mandates is the distinction that this mandate can only be imposed when it pertains to an industry where the producers are, themselves, mandated to provide their goods and services freely to anyone who seeks them. Or, "A mandate for a mandate".
Because we require all healthcare providers to render their services to all who need it, treat first and ask for billing information later, then by virtue of that mandate of service, the government should be empowered to mandate a degree of personal, financial responsibility on the part of the individual who sought out that service.
In short, because the nature of the healthcare industry is unlike any other industry in the country, the nature of the individual mandate could be just as unique and singularly applicable.
It remains to be seen how the Supreme Court will ultimately rule, but it's already abundantly clear that this argument is far more complicated than forcing people to buy broccoli.
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