The debate over health care reform has been mostly a theoretical affair, complex, abstract and full of predictions that contradict one another. Amid this ambiguity, one fact is unequivocal and unprecedented.
Under Section 1501 of the Patient Protection and Affordable Care Act, every American will be compelled to purchase health insurance, or else - the "or else" being a fine collected by the Internal Revenue Service should you fail to ante up.
"The mandate," as it's known, has its origins in the Commerce Clause of the Constitution, which grants Congress the authority to regulate interstate commerce. Yet it doesn't take an Elena Kagan-level legal scholar (or even a fan of "Boston Legal" reruns) to see that the mandate, rather than regulating commerce, is being used to regulate the absence of commerce.
Why is this distinction noteworthy? Well, at the risk of sounding alarmist, if Congress can compel the purchase of a product - health insurance - under its authority to regulate and stabilize the interstate market for health care, then, using the same legal theory, what transaction can't it compel?
Transportation and automobiles, for example, are interstate markets. And as we've seen with the $13 billion bailout of General Motors, stabilizing the automotive industry is certainly a congressional concern. Why not compel Americans earning, say, more than $35,000 a year to buy GM cars? Or, better still, in a kill-two-birds tactic, why not compel them to buy Chevy Volts, thus ensuring the stability of the auto industry and the interstate market for clean energy?
As the federal government's lawyers explained in a late May motion in the Virginia attorney general's case against Obamacare, "Foregoing health insurance ... is not the same as foregoing health care. When accidents or illnesses inevitably occur, the uninsured still receive medical assistance, even if they cannot pay."
Play out that logic: Those who get sick need care. People who need care drive up costs in the medical sector. Congress has the authority and the need to control medical costs. Thus, Congress can legally compel Americans to pay for health insurance.
If that's a valid reading of the law justifying a mandate, then why not compel Americans to buy 24-Hour Fitness memberships or Nike sneakers? After all, the absence of exercise lowers your fitness level. That increases the likelihood you'll need health care. Lather, rinse, repeat.
The government's theory makes a case broad enough to control virtually all financial transactions - or the lack thereof. If such a mandate doesn't offend you as a curtailing of liberty, then consider how likely it is to fail at its stated intention: bringing 45 million Americans who today don't have private health insurance or Medicaid into the risk pool, spreading out the risk across more payers and bringing down health insurance premiums.
Author: Dr. Eric Novack | 
