Publius' statist physician colleague, Herodotus, brought to his attention an article in Slate by Eliot Spitzer that called supporters of state auto insurance mandates who opposed the federal health insurance mandate hypocrites. Publius pointed out that there were important differences between state insurance mandates and federal mandates and important differences between auto insurance and health insurance (the Spitzer piece ignores the former and oversimplifies the latter). Herodotus responded by arguing that a federal mandate is necessary because we all bear the cost of the uninsured when they are treated in the emergency room or hospitals; people die from lack of health insurance and it is more important to have a health insurance mandate because although you can choose not to drive, you can't "opt out" of needing healthcare; the auto insurance mandate is essentially federal because all 50 states have it; it is hypocritical for South Carolina (the state discussed in the Spitzer piece) to fine citizens that don't have auto insurance but then oppose a federal law that would require the same of health insurance; and that making the federal health insurance mandate a states' rights issue is a, "shameful avoidance tactic." Publius responds:
My dear Herodotus, first of all, of course I understand what happens to uninsured patients in the system. You and I work at the same hospital and we have both cared for a lot of uninsured patients. Our hospital uses the amount of indigent care it provides to negotiate higher bed fees with the state (which regulates what hospitals can charge per night) to make up the difference from the insured patients, so yes we all pay. Hopefully you have not misconstrued my comments to mean that I support the fact that some people don’t have health insurance. But, supporting a goal of universal coverage and supporting an individual mandate to buy health insurance from a private insurance company is most assuredly not the same thing. There are other ways to increase coverage (or even provide universal coverage by expanding Medicare a la Canada style and as Howard Dean has proposed) without necessarily having a mandate that everyone buy a product from a private company that is more interested in its profits than your health. This is what Candidate Obama argued for. The reason for his backtrack is insurance companies lobbied that they couldn’t afford the new rules on pre-existing conditions unless all of those young and healthy people (and yes, I realize they could need catastrophic coverage and really shouldn’t be going without coverage even though many choose to) who are low risk were made to buy policies too to defray the cost of insuring higher risk people with pre-existing conditions. So the individual mandate is nothing more than a give away to big insurance companies and I think there is some hypocrisy in a President promoting a policy he previously said himself was unconstitutional and rhetorically railing against health insurance companies to promote it, when all the while he was really doing their bidding….
Nor is making this a federalism issue an avoidance tactic. A federal mandate for everyone to buy a particular product is unprecedented and 50 state mandates for auto insurance are NOT the same thing when each was a separate act of 50 different state legislatures. Like it or not, we have a federal system. The states have powers and the federal government has powers. Federal powers are enumerated in the constitution and everything else, according the tenth amendment is state authority. The tenth amendment has been watered down by the 14th. While the 13th Amendment abolished slavery, it was the 14th that made sure that similar infringements to liberty aren’t protected by states rights again with the equal protection clause. This amendment paved the way for the Civil Rights Act 100 years later, which would’ve been unconstitutional without the 14th amendment. Because this amendment broadens federal authority and we have lived in that era, I think we sometimes forget that there are limits on federal authority and states are sovereign over some things. States still do retain the authority to regulate medical practice, for example. You and I are licensed by the state and even though there is now a standardized licensing exam, rather than 50 exams, it is still the state the sets our CME requirements and it is a state panel that reviews allegations about our professionalism, etc. There are state standards for our professionalism and if a license needs to be revoked, the state does it. Oregon is the only state in union with an assisted suicide law, again it is their right to do so because states regulate medical practice and it would be wrong to ban that at the federal level (school curriculum, police and fire services, and most road-building are other examples of primarily state functions). What I find hypocritical about Republicans is not that they can support a state insurance mandate and not a federal one, but rather that they only use the states rights card when it suits them. This supposedly states rights party under Attorney General Ashcroft used the Controlled Substances Act (itself of dubious constitutionality) to prosecute physicians in Oregon who used narcotics to help people die and aggressively prosecuted medical marijuana clinics that were in compliance with their state laws. Under the Bush administration they intervened shamefully in the Terri Schiavo case and set federal education standards in No Child Left Behind. These are all things Republicans should be against if they believe in state sovereignty. But similarly state sovereignty by definition under the tenth amendment would give states the authority to impose any sort of insurance mandate whereas the federal government does not retain that authority. The real issue here in the legal sense is what grants the federal government the power to do this? The Obama administration has argued two things: first that the revenue raising measures qualify the bill as a tax and that it is constitutional because the federal government is granted the power to tax in the constitution. Talk about rank hypocrisy! He insisted there were no taxes in the bill when he sold it to the American people and now he says it’s constitutional because it’s a tax! The second argument is that the interstate commerce clause is broad enough to include this. The problem with that view is that the health insurance industry is also something that historically has been regulated by states (which again makes the federal mandate an unprecedented thing). Each state has its own laws regarding what must be covered, etc. and in some states there are lots of plans that meet requirements and in others the regulations limit to just a few providers. In most states it is illegal to buy health insurance across state lines because most states don’t want you to evade their minimum standards by buying a plan in a different state that does not have the same standards (that’s the official reason, the real reason is health insurance companies have lobbied for that to limit their own competition). So it’s hard to justify the mandate in terms of the interstate commerce clause, particularly since the only measure that would have made it interstate commerce, a provision to allow people to buy insurance across state lines, was stripped from the bill.
In my view, the checks and balances between federal and state authority are as important a guarantor of liberty as the checks and balances between branches of the federal government. Is this system of government perfect? No. It makes mistakes. Sometimes the checks prevent bad policy from happening, but sometimes they prevent good policy too. Clearly state sovereignty protected slavery for many years, which is the classic example of states rights gone awry. However medical marijuana laws are the modern example of a heavy-handed federal law restricting liberty in individual states… On balance I think it is important to have these checks and if we decide that health insurance reform is one of those issues that the checks get in the way of the solution then the answer is not to ignore the checks, but rather to find a constitutional way to do something or amend the constitution. Taking short cuts around a small part of the constitution for altruistic purposes only sets the precedent for making similar dodges around more important parts of the constitution (like protections on free speech for example). I hate to sound like a lawyer here and I know it’s frustrating when technicalities get in the way of good policy, but I think it is a more dangerous precedent in the long term for us to get in the practice of ignoring our own rules…
Furthermore, there are fundamental differences between health insurance and auto insurance. One of them you mentioned, which is you can choose not to drive. That was the point you made that I was most impressed by, simply because in my libertarian echo chamber I had never thought of it quite the way you do and I am always grateful when someone gives me an alternate way of looking at things. As a libertarian I have always thought that an auto insurance mandate is different from a health insurance one, even on the state level, because if I don’t want to purchase auto insurance, I can choose not to drive. I can live close enough to work to bike or walk. I can take mass transit, etc. On the other hand, the only way I could avoid a health insurance mandate if I didn’t want to to buy health insurance is to choose not to breathe…. Your point that the other way of looking at that is I can change my situation so that I don’t need auto insurance but can’t opt out of a need for health care is clever. But, I would still point out that having health insurance is not the same as receiving health care. You and I provide health care and have both provided it to plenty of people without insurance. Likewise the insured has to find providers that accept his or her insurance and may have care denied by their insurance company….
But there is a second important difference between auto insurance and health insurance. Auto insurance is catastrophic insurance. You use it for accidents or expensive work on your car. You don’t use it to rotate your tires, change your oil, put gas in your car or do other routine maintenance (whereas you use your health insurance for well visits, routine blood work, etc.) – even though the routine maintenance can help prevent a major problem down the road (no pun intended). The purpose of a state auto insurance mandate is precisely the point you make about uninsured patients – it costs everyone when an uninsured driver causes an accident and can’t pay (or at best the person not responsible for the accident would be stuck with the bill). In medicine this is the uninsured patient who gets into a car accident or walks into the ER with an MI, or is diagnosed unexpectedly and young with cancer. So there is certainly some rationale for a health insurance mandate (particularly a state one which would be constitutional), but neither the Obamacare mandate nor the Romneycare mandate are mandates for catastrophic coverage only, they are mandates for full coverage when merely catastrophic coverage would solve the moral hazard problem of the uninsured. So using the auto insurance analogy is like comparing apples to oranges (or at best oranges to grapefruits).
Unlike your thoughtful response, my dear Herodotus, the Spitzer piece largely glossed over these important distinctions and was nothing more than an amalgam of Democrat-party pro-Obama care talking points. It is the type of intellectual laziness I would expect from Republicans (whom I have already pointed out are generally for state rights until they oppose the policy of a particular state, then they want the feds to control it) and far beneath the usual standards of Slate (although I have to admit the only person I actually ever read in Slate is Christopher Hitchens, who I think is the most brilliant writer of our times, even though I disagree with him at least half the time). I have to say, however, that I was unaware that South Carolina makes you buy car insurance even if you don’t drive and if that was in the Spitzer piece and I missed it then I owe a small apology to the former Governor. Again, although the apple that is a state car insurance mandate has little bearing on the orange that is a federal health insurance mandate, for all the reasons detailed above. I must confess that I had no idea SC required people to buy car insurance whether or not they drive. I agree that is completely ridiculous and I don’t know how any sane person of any party can support forcing someone who doesn’t drive to buy auto insurance. GEICO must be a big donor…