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My view: Health care decision is questionable

By Ken K. Gourdin

Published: Thursday, July 5 2012 12:00 a.m. MDT

The U.S. Supreme Court's recent decision upholding the key provision of President Obama's health care law requiring people to buy health insurance (the mandate) or remit a payment with their taxes if they choose to go without insurance is farther reaching than its proponents realize. It has opened a brave new world of potential government influence.

Few would argue that lack of insurance (and resulting lack of access to care) is a serious problem. However, the law's solution raises serious questions about the scope of both government power and of individual liberty. While such consequences remain unforeseen, the court's decision could have serious unintended effects on a wide spectrum of future court decisions.

The Constitution supposedly created a government of limited powers. However, if Congress can force people to buy health insurance (however praiseworthy the law's purpose and however necessary the mandate is to accomplishing that purpose), what will Congress not be able to do?

Essentially, the court considered two potential sources of Congressional power to determine whether the mandate is constitutional. First, the Constitution gives Congress the power to "regulate commerce" (the Commerce Clause). And second, it gives Congress the power to collect taxes. But there are problems with resorting to either of these provisions to support the mandate.

The mandate is necessary to support the law because without it, companies would not collect enough in insurance premiums to pay for the care of the oldest and the sickest, whose care costs the most. Justice Ruth Bader Ginsberg found that the commerce clause supports the mandate. Chief Justice John G. Roberts Jr., along with a majority of the court's justices, found that Congress's power to collect taxes supports the mandate.

Both Ginsberg's and Roberts's positions are problematic. Ginsberg's position is problematic because she found that people are engaged in commerce even when they choose not to buy health insurance (so Congress can regulate that choice). And Roberts's position is problematic because he found that people can be taxed even when they don't buy insurance.

While Ginsberg points out that government requires people to do things all the time (such as register for selective service) and that a requirement to purchase insurance is no different, she employs faulty logic to support her position. Those who don't buy insurance, she says, are active in the "self-insurance" market.

Ginsberg's premise uses new definitions of the words "market" and "activity." Even if one accepts the new premise that there is a "self-insurance market," one is not "active" in that "market" unless and until one purchases medical goods and services out of one's own pocket. Unless and until that happens, one has not engaged in commerce which Congress can then regulate.

Roberts, too, employs similar flawed logic to support his position. Taxing those who do not buy insurance, he says, is no different than taxing gasoline or taxing income. But in the latter two cases, the government is taxing some activity, while in the former case it is taxing inactivity.

If people who do nothing are engaged in commerce, or if their inactivity is subject to taxation, there seems to be no logical end to the government's reach. While the law does achieve worthwhile aims, for this reason, it does so by questionable means.

Ken K. Gourdin received a B.S. in Criminal Justice from Weber State University and is certified as a paralegal by the National Association of Legal Assistants. He lives in Tooele.

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