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Healthcare reform vs. individual liberty, GOP edition [UPDATED]

individual mandate, healthcare reform, liberty, interstate commerce, John Kyl, Charles Grassley, Libertarian

Republican members of Congress have started spouting Reason magazine-style arguments against the individual mandate in the healthcare reform bills moving through the House and Senate. For example, Sen. John Kyl (R-Ariz.) called the mandate "a stunning assault on liberty," and Sen. Charles Grassley (R-Iowa) declared that "Individuals should maintain their freedom to chose health-care coverage, or not." Setting aside for a moment the support that Republican lawmakers expressed in the not-too-distant past for the individual mandate (including the Republican governor of a certain large West Coast state), it's just ... unseemly for the GOP to stick a shiv in the ribs of the insurance companies they've been protecting throughout this debate.

Remember, the main proponents of the mandate are private insurers, who like it for at least two reasons. It brings a significant number of young, healthy people into the risk pool, which should improve their margins. And it helps solve the "adverse selection" problem that would be caused if insurers were required to offer coverage to everyone, with no increase in price for those with pre-existing conditions. The insurance industry's trade association has agreed to such regulations as part of a package of changes that includes an individual mandate.

The main argument these days against the mandate is that Congress doesn't have the power to impose it. Slate's Timothy Noah has explored this interesting constitutional question, concluding that it is, in fact, legal. It would be more of a slam dunk, IMHO, if Congress allowed insurers to offer policies across state lines, which the proposal from Senate Finance Committee Chairman Max Baucus (D-Mont.) would do under certain circumstances. Even without interstate policies, I think there's a good case to be made that requiring people to carry health insurance is akin to requiring them to pay into the Social Security and Medicare trust funds -- it's a forced contribution into a national system of shared risk and cost, albeit one administered largely by private entities.

Nevertheless, I'll freely admit that there are compelling arguments on the other side too. It's just strange to hear that position taken by the same Republican lawmakers who fight even the mildest version of a public-plan option on the grounds that it's bad for private insurers.

Updated on Sept. 24 at 2:50 p.m.: I just came across a thorough discussion of the constitutional issues triggered last month by Jonathan Adler at the Volokh Conspiracy blog, with a follow-up last week by Adler. The posts are well worth reading, along with the comments, if you want to dive further into the weeds.

Photo: Sens. Charles Grassley (R-Iowa), Orrin Hatch (R-Utah), Olympia Snowe (R-Maine) and John Kyl (R-Ariz.) debate healthcare legislation at the Senate Finance Committee. Credit: Chip Somodevilla / Getty Images

-- Jon Healey


Comments () | Archives (7)

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Has anyone discussed this section, it's pretty scary. Sorry for the length everyone but does this section of the health bill mean that the Big O appoints almost 17 people (out of I think 26) to an advisory panel and only one has to be a doctor? Please tell me I'm wrong. Read (5) PARTICIPATION.

And if we are forced to carry insurance will we have to sign a waiver saying we can only go to arbitration instead of court if the health providers, etc. mess us up? Should the bill include that they can't force us into limited recourse?

And when is baucus going to retire (or just go far, far away and never, ever, ever come back?) We all need to send him a message people! Flood him with emails that we don't want him in charge of anything!


(a) Establishment-
(1) IN GENERAL- There is established a private-public advisory committee which shall be a panel of medical and other experts to be known as the Health Benefits Advisory Committee to recommend covered benefits and essential, enhanced, and premium plans.
(2) CHAIR- The Surgeon General shall be a member and the chair of the Health Benefits Advisory Committee.
(3) MEMBERSHIP- The Health Benefits Advisory Committee shall be composed of the following members, in addition to the Surgeon General:
(A) 9 members who are not Federal employees or officers and who are appointed by the President.
(B) 9 members who are not Federal employees or officers and who are appointed by the Comptroller General of the United States in a manner similar to the manner in which the Comptroller General appoints members to the Medicare Payment Advisory Commission under section 1805(c) of the Social Security Act.
(C) Such even number of members (not to exceed 8) who are Federal employees and officers, as the President may appoint.
Such initial appointments shall be made not later than 60 days after the date of the enactment of this Act.
(4) TERMS- Each member of the Health Benefits Advisory Committee shall serve a 3-year term on the Committee, except that the terms of the initial members shall be adjusted in order to provide for a staggered term of appointment for all such members.
(5) PARTICIPATION- The membership of the Health Benefits Advisory Committee shall at least reflect providers, consumer representatives, employers, labor, health insurance issuers, experts in health care financing and delivery, experts in racial and ethnic disparities, experts in care for those with disabilities, representatives of relevant governmental agencies. and at least one practicing physician or other health professional and an expert on children's health and shall represent a balance among various sectors of the health care system so that no single sector unduly influences the recommendations of such Committee.
(b) Duties-
(1) RECOMMENDATIONS ON BENEFIT STANDARDS- The Health Benefits Advisory Committee shall recommend to the Secretary of Health and Human Services (in this subtitle referred to as the `Secretary') benefit standards (as defined in paragraph (4)), and periodic updates to such standards. In developing such recommendations, the Committee shall take into account innovation in health care and consider how such standards could reduce health disparities.
(2) DEADLINE- The Health Benefits Advisory Committee shall recommend initial benefit standards to the Secretary not later than 1 year after the date of the enactment of this Act.
(3) PUBLIC INPUT- The Health Benefits Advisory Committee shall allow for public input as a part of developing recommendations under this subsection.
(4) BENEFIT STANDARDS DEFINED- In this subtitle, the term `benefit standards' means standards respecting--
(A) the essential benefits package described in section 122, including categories of covered treatments, items and services within benefit classes, and cost-sharing; and
(B) the cost-sharing levels for enhanced plans and premium plans (as provided under section 203(c)) consistent with paragraph (5).
(A) ENHANCED PLAN- The level of cost-sharing for enhanced plans shall be designed so that such plans have benefits that are actuarially equivalent to approximately 85 percent of the actuarial value of the benefits provided under the reference benefits package described in section 122(c)(3)(B).
(B) PREMIUM PLAN- The level of cost-sharing for premium plans shall be designed so that such plans have benefits that are actuarially equivalent to approximately 95 percent of the actuarial value of the benefits provided under the reference benefits package described in section 122(c)(3)(B).
(c) Operations-
(1) PER DIEM PAY- Each member of the Health Benefits Advisory Committee shall receive travel expenses, including per diem in accordance with applicable provisions under subchapter I of chapter 57 of title 5, United States Code, and shall otherwise serve without additional pay.
(2) MEMBERS NOT TREATED AS FEDERAL EMPLOYEES- Members of the Health Benefits Advisory Committee shall not be considered employees of the Federal government solely by reason of any service on the Committee.
(3) APPLICATION OF FACA- The Federal Advisory Committee Act (5 U.S.C. App.), other than section 14, shall apply to the Health Benefits Advisory Committee.
(d) Publication- The Secretary shall provide for publication in the Federal Register and the posting on the Internet website of the Department of Health and Human Services of all recommendations made by the Health Benefits Advisory Committee under this section.

(a) Process for Adoption of Recommendations-
(1) REVIEW OF RECOMMENDED STANDARDS- Not later than 45 days after the date of receipt of benefit standards recommended under section 123 (including such standards as modified under paragraph (2)(B)), the Secretary shall review such standards and shall determine whether to propose adoption of such standards as a package.
(2) DETERMINATION TO ADOPT STANDARDS- If the Secretary determines--
(A) to propose adoption of benefit standards so recommended as a package, the Secretary shall, by regulation under section 553 of title 5, United States Code, propose adoption such standards; or
(B) not to propose adoption of such standards as a package, the Secretary shall notify the Health Benefits Advisory Committee in writing of such determination and the reasons for not proposing the adoption of such recommendation and provide the Committee with a further opportunity to modify its previous recommendations and submit new recommendations to the Secretary on a timely basis.
(3) CONTINGENCY- If, because of the application of paragraph (2)(B), the Secretary would otherwise be unable to propose initial adoption of such recommended standards by the deadline specified in subsection (b)(1), the Secretary shall, by regulation under section 553 of title 5, United States Code, propose adoption of initial benefit standards by such deadline.
(4) PUBLICATION- The Secretary shall provide for publication in the Federal Register of all determinations made by the Secretary under this subsection.
(b) Adoption of Standards-
(1) INITIAL STANDARDS- Not later than 18 months after the date of the enactment of this Act, the Secretary shall, through the rulemaking process consistent with subsection (a), adopt an initial set of benefit standards.
(2) PERIODIC UPDATING STANDARDS- Under subsection (a), the Secretary shall provide for the periodic updating of the benefit standards previously adopted under this section.
(3) REQUIREMENT- The Secretary may not adopt any benefit standards for an essential benefits package or for level of cost-sharing that are inconsistent with the requirements for such a package or level under sections 122 and 123(b)(5).

Jim Russell

Grassely is a self proven moron and liar. This guy has proven himself on video tape to be a moron; "death panels" and a 2-faced liar; "insurance mandates".

andrew nelson

A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action.
The government has never required people to buy any good or service as a condition of lawful residence in the
United States.

An individual mandate has two features that, in combination, make it unique. First, it would impose a duty on individuals as members of society. Second, it
would require people to purchase a specific service that would have to be heavily regulated by the federal government.

The only analogous mandate on individual behavior from the
federal government on this level would be the registration provisions under the Selective Service Act. The authority to impose a selective service system and military draft, however, is founded under the Congressional Article I power to raise and support armies.

Under what Constitutional authority may the Congress act to mandate, individually, the purchase health insurance? The Constitution would permit Congress to legislate such a health insurance mandate using its Commerce Clause authority or its general taxing authority.

If Congress were to invoke its Commerce Clause authority to support legislation mandating individual health insurance coverage, such an action would have to contend with recent Supreme Court precedent limiting unfettered use of Commerce Clause authority to police individual behavior that does not
constitute interstate commerce: United States v. Lopez,10 invalidating the application of the Gun Free School Zones Act of 1990 to individuals and United States v. Morrison,11 invalidating certain portions of the Violence Against Women Act. In the case of a mandate to purchase health insurance or face a tax or penalty, Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.

The proponents of an individual mandate might have the best congressional authority argument through use of the taxing power. But proponents of an individual mandate are reluctant to call it a “tax.” The Congressional Budget Office has previously opined that an individual mandate coupled with an excise tax would not be a “tax” so long as people have "choice" as to what health care coverage to purchase. If that CBO position is maintained, the individual mandate might not have to be treated as a “tax” for House and Senate parliamentary procedure purposes. But it is potentially problematic to use the taxing power as the
Constitutional authority to enact an individual mandate, but not call it or its enforcement mechanism a “tax” for purposes of budget scoring rules.

The mechanisms of enforcement of an individual mandate would invite scrutiny as well. Enforcement through the federal tax system would be useless for those who have no income to be taxed and do not file tax returns or for those who have no tax liability. This suggests even more aggressive types of enforcement will be necessary. Sherry Glied, Ph.D., who was recently nominated by President Obama
become Assistant Secretary for Planning and Evaluation at the U.S. Department of Health and Human Services has warned, “[d]eveloping a system to promptly identify and penalize scofflaws will take effort and ingenuity, particularly in our diverse and mobile country. It may require a degree of intrusiveness and bureaucracy that some will find unpalatable.”

An individual mandate also presents issues under the First Amendment’s Free Exercise Clause and the Fifth Amendment’s Taking Clause. Given the uncertainty with how an individual mandate would comport with religious beliefs regarding health care choices, the Senate Finance Committee policy outline suggests creating an exception to the health insurance mandate for “religious reasons.” It still leaves
open, however, the question of whether the compelled purchase of health insurance constitutes the “taking” of private property under the Fifth Amendment. Given the novel nature of the individual health insurance mandate, a Fifth Amendment challenge can be expected. Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on
individual circumstances could be considered an arbitrary and capricious “taking” no matter how many hardship exemptions the federal government might dispense.

Jon Healey

@Andrew -- I think the "taking" argument is a weak one, frankly, because the mandate compels people to buy something of value, rather than depriving them of something without just compensation. I'm more intrigued by the Commerce Clause argument. States clearly have the power to impose such a mandate -- they do it already to car owners. But it's not so clear-cut for the feds. And as for calling it a tax, I don't see how it meets that definition, given that the money doesn't get collected by the government. But IANAL, so take this with a large grain of salt. And please check out Tim Noah's piece linked to above.

Jon Healey

@Jim -- I think the provision means that only one has to be a "practicing" doctor. The panel's membership is supposed to balance the interests within the industry, so I think there would have to be a significant number of folks representing the people who actually deliver care.

It's also worth remembering that this panel's purpose is to figure out what insurers should include in the plans they offer to new customers, for the purpose of avoiding the underinsurance problems that have bankrupted thousands of people who *have* coverage. It has nothing to do with setting payment levels or figuring out the best way to treat different ailments.


Medicare and Social Security are both economically unsustainable, and as Govt encroachments upon the rights of citizens, beneath contempt. But, they Are, at least, ponzi schemes run By Govt.

Requiring citizens to subsidize Privately owned ponzi schemes (Insurers) goes Way beyond mere contempt, and brings to mind the exculpatory defense of WWII Italien fascism.

"But at least he (Mussolini) got the trains to run on time."

Steven Bell

Individual mandates in conjunction with a progressive subsidy scheme is a shell game designed to have the same effect as a single payer system funded by a progressive income tax. However, the subtle distinctions make one constitutional and the other unconstitutional. It's perfectly constitutional to have a tax tied to income and the amount of the tax tied to the amount of income. It's dubious at the Federal level to require an individual, regardless of income level or employment status, to write a check to a private insurance company.



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