Another Problem with Challenges to the Individual Mandate
The Federal District Court in Florida decided this week, following two other District Courts, that it can reach the merits of something that won’t take effect for more than three years. Since no court thus far has decided that discretion is the better part of valor when it comes to the individual health insurance mandate, I guess maybe it’s time to mothball that argument. (So much for judicial restraint.)
With respect to the merits, let me expand on something that I said in a prior post. Opponents of the mandate say that it is unprecedented for Congress to use its Commerce Clause power to regulate inactivity or compel activity. Of course, it is not unprecedented for Congress to use its powers to regulate inactivity or compel activity. We draft citizens for military service, juries, and paying taxes. What distinguishes those activities? The leading argument, at least in the briefs and in some of the academic commentary, is that those are basic duties of citizenship, whereas buying health insurance is not. (Of course, the health care reform act itself arguably makes the purchase of health insurance a basic duty, but let’s leave that aside.)
A potential problem with this claim, however, is that we already have a fundamental right to health care. It’s called going to the emergency room for free. This right is pretty well-established both in terms of its age (since the 1980s) and in the settled expectations surrounding its exercise. The argument against the mandate, though, holds that there is no corresponding duty to pay for that health care if you can.
Accordingly, I’m not sure why the mandate should be seen as an unconstitutional unfunded mandate. Why isn’t this more properly assessed as an attempt to create a constitutional right to free-ride ? Now I suppose a plaintiff could say, “I don’t want to buy health insurance, and I will never accept free medical treatment from an emergency room.” Maybe that guy is analogous to a conscientious objector to the draft and we should say that he cannot be required to buy insurance. (I think that if Congress had not exempted those with religious objections from the health insurance mandate, then it would be unconstitutional as applied to them.) I don’t see, though, why somebody who is happy to take the free health care in the ER can claim that he has a right not to pay for it.
UPDATE: On reflection, the conscientious objector does have a constitutional right to free-ride. So I suppose what I’m really saying is that you need a more specific showing than just “I don’t want to buy health insurance” to succeed.
UPDATE #2: You could even go further and argue that this is a constitutional right to welfare claim in disguise. (“I am entitled to health care without having to pay for it.”)