Give me liberty or give me health care -- the end

Charles Lane
Copyright 2011
Tuesday, March 8, 2011; 5:11 PM

For those following my ruminations about the constitutionality of the individual mandate in President Obama's health-care reform legislation -- a group substantially smaller than, say, Sara Bareilles'sfan base, I admit -- it may come as a surprise that I actually think an individual mandate can be good policy. Well, let's put it this way: I strongly agree with those who argue that the lack of universal health coverage in the United States is a big problem, morally and economically. In fact, every other day I wake up believing that we should just enact a single-payer plan and have done with it. Medicare for all would be a heck of a lot more straightforward than today's system -- forget S-CHIP, Medicaid, veterans' benefits, Tri-Care, gold-plated plans for union members, and the rest. Single payer would clearly be constitutional, too, under Congress's power to tax and spend for the general welfare. Given the political impossibility and -- as I worry on alternate mornings - unsustainable cost of such a plan, an individual mandate to buy private insurance is a plausible alternative. It all depends how you do it, because one thing I believe in even more strongly than universal health coverage is constitutional government. I would much rather safeguard the latter than guarantee the former. Possibly, this is where I differ with other commentators. Fortunately, there is no shortage of ways to devise a perfectly constitutional individual mandate, as opposed to the constitutionally questionable version in the Obama package. Republicans have been mocked for supposedly supporting an individual mandate back in the 1990s, and then opportunistically discovering its constitutional defects today. But, as best I can tell, none of the proposed Republican mandates worked the way Obama's does: i.e., by means of a mandate to buy private insurance, subsidized in some cases, enforced by a cash "penalty" -- not an openly declared tax -- for all but religious objectors. Like Obama's bill, moderate Republican Sen. John Chafee's 1993 bill declared that all citizens and resident aliens "shall be covered" and offered subsidies to help. But, quite unlike Obama's plan, it forthrightly added: "There is hereby imposed a tax on the failure of any individual to comply." No ambiguity as to what constitutional authority they're invoking. Chafee's more conservative GOP colleagues, Rick Santorum and Phil Gramm, offered a variant. The federal government would provide a minimal amount of subsidized coverage, but if you didn't take it, you wouldn't be eligible to join a subsidized insurance pool for folks with preexisting conditions. In other words, you'd be free -- but you'd have to live with the consequences. And those consequences, under the bill, would include lesser protections in case you went bankrupt due to medical debts. Again, I see no constitutional issue. The choice is yours: Join the government plan and reap the rewards; refuse it and continue on with your life as before, taking risks, which, depending on circumstances, might be perfectly acceptable to you. The Santorum-Gramm plan, in fact, bears a faint resemblance to the individual mandate devised by liberal health-care expert Paul Starr of Princeton University. Starr has been warning, accurately, about "a popular backlash" against Obama's individual mandate for a long time, arguing that it "communicate[s] the wrong message about a program that is supposed to help people without insurance, not penalize them." Starr proposed giving people a right to opt out of the individual mandate, if they agreed in writing to forgo all of the law's benefits for the following five years: no subsidies, no guaranteed issue, nada. Seems fair to me: those who really don't want to deal with "ObamaCare" can preserve their freedom; without imposing a "free-rider" problem on everyone else. Indeed, given the magnitude of the penalties in Obama's bill -- too low to induce total compliance, too high not to be annoying -- Starr's method might even prove more effective at getting everyone into the risk pool. As Starr notes, this is roughly the way universal health care works in Germany, except that there, once you opt out of the system, you can never come back. Those Germans are tough. In short, there are a number of ways to skin this cat that do not involve the Obama plan's peculiarly objectionable, and possibly unconstitutional, combination of paternalism and deceptively labeled coercion. I confess that Starr's plan is my preferred solution; it's so obviously superior to the one Congress came up with that I can't really understand why they didn't do it his way in the first place. Now, of course, it's too late for a legislative fix, and the fate of universal health coverage may be in the hands of the Supreme Court's swing voter, Justice Anthony M. Kennedy.

© 2011 The Washington Post Company