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the health insurance mandate does not require Americans to subject themselves to health care. It requires them only to buy insurance to cover the costs of any health care they get.
—Einer Elhauge, professor of law at Harvard, founding director of the Petrie-Flom Center in Health Law Policy: via NYT
Professor Elhauge enters the healthcare debate with a precise refutation of the but they’ll make me eat broccoli contingent. So say the many critics of the healthcare legislation passed by congress. If the government can make me buy health insurance, what’s to stop them from making me buy broccoli or worse. Elhauge finds these critics and their adherents baseless for three reasons, all of which point to a perversion of the debate based on a faulty understanding of the Constitution.
It happens that we are already legally bound to purchase healthcare. It’s called medicare, and everyone must contribute to medicare as a condition of employment. Elhauge points out that some might say one can always forgo employment and, therefore, it’s not a mandate. But, asks Elhauge, is that a difference of substance?
If we were to entertain a difference of substance, Elhauge has a constitutional lesson for these opponents. The discussion of the commerce clause, argues Elhauge, is a red herring. Yes, one can invoke it to support the present healthcare reform, and precedents, such as Wickard v. Filburn, provide legal cover. He does make a technical point that the healthcare reform law would need to be phrased differently and offers the following: anyone who has engaged in any activity that affects commerce must buy health insurance. Nonetheless, the broccoli contingent will still have their will it only stop when they make me eat broccoli editorials. Perhaps yes, Congress could make you eat broccoli, but Elhauge reminds us that there is nothing in the constitution against making stupid laws, and not all laws requiring purchases are stupid – example, airbags.
Elhauge swiftly moves from the commerce clause, however, to the necessary and proper clause. If the discussion around the commerce clause is a red herring, the necessary and proper clause is unambiguous.
The mandate is clearly authorized by the “necessary and proper clause,” which the Supreme Court has held gives Congress the power to pass any law that is “rationally related” to the execution of some constitutional power.
Because the law requires insurers to cover everyone while also restricting premiums, it is necessary and proper to the execution of the law to compel everyone to seek coverage. If not, premiums would skyrocket, coverage would be untenable, and the law would fail.
The commerce clause is important, but it’s not the only mechanism at play. The necessary and proper clause provides a critical underpinning to healthcare reform. By narrowing the debate to the commerce clause, healthcare reform’s critics have introduced a red herring and avoided a proper analysis of the law.