The Freedom Bulletin

It just keeps getting better! Not only is Virginia suing against the federal requirement to have health insurance, but a man named Michael Merlina is suing the Massachusetts Health Connector Authority, the entity in charge of implementing the state’s health insurance mandate. He was fined $2000 for failing to have insurance, and the Connector denied his appeal.

It’s awesome that someone is challenging the state’s individual mandate in the court system, but even better that three of out the four gubernatorial candidates (at least to some extent) support Merlina and criticize the individual mandate.

Republican Charlie Baker isn’t explicitly anti-mandate, but he makes a good point about Massachusetts’s long list of benefits that all insurance plans must cover:

“The whole plan was for people to have more affordable options, and Gov. Patrick eliminated them. Michael Merlina is arguing that the price of health insurance has become unaffordable, and he’s right.”

Said Independent Tim Cahill (I’m pleasantly surprised to learn that he’s against the mandate):

“He’s not asking for a handout – he just wants to be left alone. I feel for him. I hope he wins, and throws the whole insurance mandate up in the air.”

And Green-Rainbow candidate Jill Stein is surprisingly anti-mandate as well:

“All health-care nonreform did was created a windfall for insurance and pharmaceutical companies that are in bed with Beacon Hill.”

Health-care nonreform…what a great name! I might have to start using it.

A couple of years ago, the individual mandate was considered a moderate measure, supported by Democrats and Republicans alike and only opposed by the “far right.” In the early stages of the federal health-care nonreform debate, the individual mandate was considered a given and was rarely mentioned. All of the debate focused on the public option, Medicare cuts, abortion funding, and other things that, although important, are not as important as the mandate from a pro-liberty point of view. Now almost every time federal health-care nonreform is mentioned in the news, the individual mandate is mentioned, and usually called unpopular and/or controversial. How awesome that three out of four gubernatorial candidates in Massachusetts, where the individual mandate was first enacted in 2006, disapprove of the mandate to some extent. People are finally realizing what freedom truly is and how severely the individual mandate violates it.

I don’t usually go to sites like AmericanProgress.org, which probably isn’t surprising given my mostly libertarian / conservative political views. But I recently happened upon an article at that site by Ian Millhiser, claiming that “it is absolutely clear that the health reform bill survives constitutional scrutiny,” that it was “clearly erroneous” to allow Virginia Attorney General Ken Cuccinelli’s lawsuit against the law to proceed, that the lawsuit is “baseless” and “wholly without merit,” and that the decision “sadly allows him to continue to waste taxpayer dollars on this frivolous lawsuit.”

I disagree with these claims, to say the least. But there are two arguments in particular that Millhiser makes that I would like to respond to.

First of all, he quotes Justice Antonin Scalia, who once said, “Where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” According to Millhiser, everyone agrees that it’s constitutional to ban insurance companies from refusing coverage to people with pre-existing conditions. If this happened but there was no individual mandate requiring people to buy insurance, then only sick people would buy health insurance, and prices would rise. I’m sure everyone doesn’t agree that the pre-existing conditions law is constitutional, but I’ll give him these first two points.

I disagree with Millhiser and Scalia, however, that if Congress has the right to pass a law, it has the right to do whatever it takes to make that law effective. Congress has the right to defend America from foreign invaders, but it doesn’t have the right to institute a draft, in my opinion, even if a draft were necessary for a strong military. Congress has the right to ban the hijacking of airplanes, but in my opinion, it doesn’t have the right to force people to take their shoes off and go through strip search machines. Individual rights come first, and the government is never justified in taking away people’s freedom, even if that is necessary to make a law effective.

Second, Millhiser claims that the individual mandate is equivalent to prohibiting businesses from using racial discrimination against potential employees or customers, since these both involve requiring people to engage in economic activity. This comparison is completely off base.

Banning segregation affects people only if they choose to own or manage businesses, and it affects them only in their role as a business owner or manager, not as a private individual. Additionally, it does not require anyone to engage in economic activity. It simply says that if someone wants to run a business, they must accept all customers regardless of race, and not use race in hiring decisions. Everyone still has the option of not running a business.

The individual mandate, however, tells people that they must use their money to buy health insurance. It tells people what to do with their own, private money that they have earned, and it applies to everyone.

So anti-segregation laws and the individual mandate are vastly different. One applies only to people who choose to run businesses and applies only when they are acting in their professional capacity. The other applies to all people in their role as private citizens. It is completely reasonable to find the former constitutional but not the latter.

The recent court decisions about S.B. 1070, Arizona’s immigration law, and Proposition 8, the ballot initiative banning gay marriage in California, have something in common. They both involve people calling certain laws unconstitutional.

Last Wednesday, Federal Judge Susan Bolton ordered an injunction against some parts of Arizona’s immigration law in response to a lawsuit by the U.S. Department of Justice, which claims the law is unconstitutional because the federal government, not the states, should have the power to regulate immigration. This Wednesday, Federal Judge Vaughn Walker overturned Proposition 8, calling it unconstitutional.

I have a question for judges, lawyers, the Department of Justice, and America as a whole: if you’re going to be calling laws unconstitutional, aren’t there better laws to call unconstitutional than these?

I am opposed to one part of the Arizona law – the part that makes illegal “the failure to apply for or carry alien registration papers.” Simply existing, legally, in this country but without registration papers does not hurt anyone or violate anyone’s rights. But the rest of the law isn’t bad. Illegal immigration is a serious problem, and I applaud Arizona’s attempt to deal with it.

I don’t think that Proposition 8 violates anyone’s rights at all, because I don’t think that marriage is a right, per se. If the government cared about equality, they would stop granting government recognition to marriages entirely and leave this to individuals and private organizations. Rewarding people for committing to a relationship, whether gay or straight, sends the unfair, false message that couples are superior to single people.

Now for some laws that are really unconstitutional and severely violate people’s rights:

• The Durham-Humphrey Amendment: Nowhere in the Constitution is the government given the power to ban people from taking medications without a doctor’s permission. Has this law ever been challenged in court? Not to my knowledge.
• The TSA’s use of full-body scanners as a primary method of airport security screening: To perform highly invasive searches on millions of people who aren’t even suspected of any crimes blatantly violates the Fourth Amendment.
• The individual health insurance mandate: The power to regulate interstate commerce does not mean the power to force people to engage in commerce.

I understand that obviously, the particular judges who made the rulings in Arizona and California have never, to my knowledge, had the opportunity to address these other laws…so the individual judges are not being hypocritical. But it says something about America as a whole that the government calls two mostly good laws unconstitutional while at least three horribly anti-liberty laws are currently considered perfectly constitutional. Hopefully liberty’s brave friends at EPIC and in Virginia will change this.

Further reading:

Court Order about Arizona law (PDF)

Photo credits: Prop 8 rally by 1FlatWorld (CC ASA 2.0); immigration law protest by Fibonacci Blue (CC ASA 2.0)

Good news for anyone who is opposed to the individual mandate requiring all Americans to purchase health insurance. Virginia’s lawsuit against the mandate has taken a step forward, as a judge gave it the okay to proceed today. From Fox News:

“U.S. District Court Judge Henry Hudson said he is allowing the suit against the U.S. government to proceed, saying no court has ever ruled on whether it’s constitutional to require Americans to purchase a product.

‘While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decision not to participate in interstate commerce,’ Hudson wrote in a 32-page decision.”

I sure hope the lawsuit succeeds. If judges still care about the Constitution, it will. Although the Commerce Clause gives the federal government the power to regulate interstate commerce, it does not allow the government to force people to engage in commerce.

On Tuesday, Missourians will vote on a ballot measure to outlaw the individual mandate, the part of health insurance reform that requires all Americans, except those who are unable to afford it, to have health insurance. From Missourians for Health Care Freedom, the organization that supports the initiative…

“Patients should have the right to pay directly for medical services with their own money. That’s because when consumers control the dollars, the patient makes the medical treatment decisions… Preserving the rights of patients to pay directly for medical care ensures that patients – not government bureaucrats – decide which doctor to see or what medical treatment to choose.”

Support Proposition C!