Legal Commentary

The John Adams Public Health Insurance Act

By Big Tent Democrat

Today appears to be John Adams Day for defenders of the individual mandate in the health bill. FTR, as I have written many times, I find the argument that the individual mandate is unconstitutional to be absurd in the extreme. Frankly, it is not a plausible constitutional objection. It is, in fact, a frivolous argument. That said, I'm not sure the Act for The Relief of Sick anf Disabled Seamen helps the legal argument that much. As Ezra Klein acknowledges:

If you read Rick Ungar's excellent explanation of the bill, you'll see it was a bit different than the individual mandate: It was a payroll tax that all sailors on private merchant ships had to pay, and in return, they were basically given access to a small public health-care system.

Making it Medicare for Sailors. The argument against the constitutionality of the individual mandate has included the idea that requiring the purchase of private insurance is what makes the individual mandate in the health bill unconstitutional and what makes it different from Medicare and Social Security. There is no logic in this distinction with regard to the Necessary and Proper Clause (as this open letter from law professors explains), but courts first decide what result they want, and come up with rationales later. More . . .

Ezra also makes the wry observation that:

[I]f conservatives really do prefer a system of payroll taxes that purchase you public insurance to the private system envisioned in the Affordable Care Act, I'm sure there are a lot of liberals who would vote for a bill that repealed the Affordable Care Act and replaced it with Medicare-for-all.

That's clever, but does miss a point - that if instead of a mandate the health bill had instead have had as a universality provision autoenrollment in a public health insurance program, we would not be having this political mandate problem right now. Not very pragmatic of the wonks on this one.

Speaking for me only

Full post as published by TalkLeft on January 21, 2011 (boomark / email).