Notes on Health Care Reform

Two slightly important questions are being neglected regarding the Health Care Reform bills in Congress: their constitutionality and their morality. Are the bill just passed in the House and that to be discussed in the Senate in accord with the Constitution, and are they in agreement with the fundamental principles of justice? I would like to ask these questions initially about one particular provision in the proposed legislation, the individual insurance mandate.

All of the proposals discussed in Congress contain a requirement that everyone residing in the United States, whether citizen or not, must buy health insurance. This will not be an option, but mandatory. In 1994 the Congressional Budget Office described this kind of mandate, which was included in the Clinton health care plan, as “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.”

Where in the Constitution is the federal government given the power to impose such a requirement? For the Tenth Amendment states that the federal government is to possess only those powers given to it in the Constitution, and that all other powers are to be reserved to the states. Historically health care has always been considered the province of the states, to the extent it is considered a matter for government at all. The sole basis that can be found in the Constitution for imposing such a mandate is the Commerce clause in Section 8. Two passages there could be considered relevant.

Paragraph 1 in Section 8 states that “Congress shall have power to lay and collect taxes to provide for the common defence and general welfare of the United States.” But redistribution, taking money from some and giving it to others, is by no means for the general welfare. General welfare means the welfare of all. But redistribution is for the welfare of some at the expense of others. Redistribution is a recipe for lowering the well-being of our society as a whole, not for raising it.

Paragraph 3 of the same section reads: “Congress shall have power …to regulate Commerce with foreign nations, and among the several States, and with the Indian tribes.” Congress shall have power to regulate commerce among the states. This statement gives rise to several questions. First, what is meant by “commerce”? Can a mandate to buy insurance count as commerce? Can imposing a universal mandate to buy insurance count as “regulating commerce”? Second, what is meant by commerce “among the several states”? Can imposing a mandate within a state constitute regulating commerce “among the states”?

Can a mandate to buy insurance count as commerce, and can imposing a universal mandate to buy insurance count as “regulating commerce”? Prof. Randy Barnett of Georgtown University claims to have carried out an exhaustive study of the meaning of the word “commerce” in the documents and debates surrounding the adoption of the Constitution. His conclusion is that in every single case the word “commerce” means “trade or exchange,” and “regulating commerce” means regulating trade or exchange. This was also the meaning given to the phrase by the Supreme Court itself for a hundred years, until the “progressive” era of the early twentieth century. But a universal mandate to buy something is not a case of regulating trade or exchange.

Second, what is meant by “among the several states”? Can a mandate imposed wholly within a state count as commerce “among the states”? “Among the states” means “between the people of different states.” If commerce “among the states” included commerce that takes place entirely within the individual states, as well as between the states, that would mean all commerce, and there would be no need of any restriction: the phrase “among the states” would be superfluous. There is nothing in the Constitution giving the federal government authority to regulate commerce or trade that takes place wholly within any particular state. Much less can the Constitution be interpreted to allow a mandate to buy insurance. Historically the purpose of these clauses in the Constitution was to free up trade between the states, which was burdened with protectionist restrictions by the individual states.

Many people in our society do not care about the Constitution. They view it simply as a formality, and often as an empty formality when it goes against policies they favor. But the American Constitution is a work of genius which has been a principal cause of the economic and political success of the United States among the nations of the world. Although the United States is a relatively young nation, its Constitution is the oldest in the world, because it has been stable while others changed. Fortunately for us, it was created before the frenzy for redistribution descended on the Western world at the French Revolution. The secret of success for us as a nation, in the future as in the past, is to follow our Constitution.

I turn now to the question of the morality, the justice, of the proposals in Congress. The aim of all of them is a redistribution of health care, taking it from some in order to give it to others. But this is unjust and immoral. Mr. Obama has said it is fair. But there is a very big difference between fairness and justice. Fairness means equality. It is true that whatever is unjust is also unfair: a thief who takes your money is not treating you equally. But the proposition cannot be inverted. We cannot say that whatever is unfair is also unjust, because to be unjust an action must cause an injury of some kind. Inequality is not an injury. To have an injustice, someone must have done something wrong. But economic inequality can occur without anyone doing anything wrong. An action is just only when it respects other people’s legitimate freedom of will. An action or a law that infringes on people’s legitimate freedom of will is unjust. Redistribution does just that. Redistribution is simply legalized robbery.

As Plato put it two thousand years ago, “Thou shalt not, if thou canst help, touch that which is mine, or remove the least thing which belongs to me without my consent; and may I be of sound mind, and do to others as I would that they should do to me.”

The assumption behind these proposals is that everybody has a right to health care. But there is no such right. Need cannot create a right. A right is a claim that can be enforced by coercion. But coercion can be justified only to prevent or punish unjust coercion. As Ambassador Jean Kirkpatrick said at the United Nations, the idea that everybody has a right to health care is a “letter to Santa Claus.”

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Thomas Patrick Burke, Th.D., is President of the Wynnewood Institute, an independent, academic, non-partisan and non-profit organization,