Can the U.S. Constitution Force Americans to Have Medical Insurance?
The view that general welfare or interstate commerce authorize the U.S. federal government to use any force whatsoever on U.S. citizens is contrary to legal logic.
December 14, 2009
Fred Foldvary, Ph.D.
Economist

One of the proposals in the restructuring of medical insurance in the USA is to force all adults to buy medical insurance. This calls for an analysis of the moral and legal basis for such force.

By natural moral law, as expressed by the universal ethic (http://www.progress.org/fold54.htm), each human being is a self-owner, with the single moral obligation to avoid harming others. The absence of insurance does not harm others. A person without insurance in effect becomes self-insured. If he requires medical services, he has a moral obligation to pay for them. There is generally also a legal obligation to pay for such services.

Thus an uninsured person who obtains emergency medical services can properly be required to pay for the services. If does not have the funds at the time, he should be required to pay the debt in the future. If he is poor and penniless, he is most likely receiving or eligible for assistance. It is therefore not only morally wrong to force people to obtain insurance, but also there is no sound financial reason to force everyone to have medical coverage.

Now let’s consider whether the U.S. Constitution authorizes Congress to force Americans to have medical insurance. The question was posed to the Speaker of the U.S. House of Representatives, and she refused to answer it. Presumably she believes that this is not a serious question because of the belief that the U.S. Constitution authorizes Congress to apply force on U.S. citizens without any restriction.

In other words, in the view of many such welfare-statists, there is no restriction on the use of force by the U.S. government on U.S. citizens and residents. Regarding the rights and liberties of Americans, they may as well tear up the Constitution and just put in a note, “anything goes.”

Tyrants who are in favor of making U.S. citizens slaves of the government argue that drivers are required to obtain liability insurance, and thus the same applies to medical insurance. But the federal government does not require drivers’ insurance within the states. The states do so because drivers travel on governmental roads, and as the agent providing the road, the state may enact rules of the road, and a driver agrees to the rules when he obtains a license. But no license is required just to be a human being.

The view that general welfare or interstate commerce authorize the U.S. federal government to use any force whatsoever on U.S. citizens is contrary to legal logic. The Constitution states that Congress only has the powers specifically allocated to it by the Constitution. The Tenth Amendment makes it clear that all other powers are left to the states. The Ninth Amendment recognizes that there are moral and common-law rights that exist prior to and apart from the U.S. Constitution, and that such rights shall not be denied by Congress, thus making natural moral rights also Constitutional rights.

A principle of legal logic is that the authorization of power in one section of a constitution does not cancel out constraints of power in other sections. Thus the authorization to levy legislation for commerce among the states does not void free speech or the security of property. Commerce may be regulated only within the constraints specified by the other sections.

In 1994, the Congressional Budget Office issued a memorandum titled, “The Budgetary Treatment of an Individual Mandate to Buy Health Insurance.” It stated, “The imposition of an individual mandate, or a combination of an individual and an employer mandate, would be an unprecedented form of federal action. The government has never required people to buy any good or service as a condition of lawful residence in the United States.”

If the requirement to buy insurance becomes law, it will be brought to the Supreme Court, which will then have to decide whether to shred what remains of the spirit of the Constitution, limited government. Congressional personae may anticipate this and do a clever run-around. They may provide funds to the states on the condition that the states make insurance mandatory. Or, Congress could just levy a tax that would pay for universal coverage.

In effect, the requirement to pay for medical insurance is a tax. But it is a tax on personhood rather than on a privilege or an activity or on property. Such a direct tax is Unconstitutional unless it is apportioned according to state population. If some folks are getting angry about the coming medical legislation, it is because such mandates are what is destroying the spirit of American liberty. Moreover, forcing Americans to buy insurance shifts more power from consumers to the very insurance firms that are being blamed for coverage that is both expensive and deficient. Consumer sovereignty is the power to not buy, and that will be lost.

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Fred Foldvary, Ph.D.
Economist

FRED E. FOLDVARY, Ph.D., is an economist and has been writing weekly editorials for Progress.org since 1997. Foldvary's commentaries are well respected for their currency, sound logic, wit, and consistent devotion to human freedom. He received his B.A. in economics from the University of California at Berkeley, and his M.A. and Ph.D. in economics from George Mason University. He has taught economics at Virginia Tech, John F. Kennedy University, Santa Clara University, and currently teaches at San Jose State University.

Foldvary is the author of The Soul of LibertyPublic Goods and Private Communities, and Dictionary of Free Market Economics. He edited and contributed to Beyond Neoclassical Economics and, with Dan Klein, The Half-Life of Policy Rationales. Foldvary's areas of research include public finance, governance, ethical philosophy, and land economics.

Foldvary is notably known for going on record in the American Journal of Economics and Sociology in 1997 to predict the exact timing of the 2008 economic depression—eleven years before the event occurred. He was able to do so due to his extensive knowledge of the real-estate cycle.