Tuesday, November 03, 2009

The Federalism Objection to the Individual Mandate

By Mike Dorf

Over on FindLaw, I have now posted my second column in my two-part series on objections to the individual mandate.  In this one, I tackle the question of whether there is affirmative power in Congress.  My conclusion: Yes, under either the commerce clause or the taxation power.  I also say that members of Congress should satisfy themselves that this is the sort of thing that is properly within their purview.

I don't have anything to add here about the federalism point, but I do want to say one more thing about the libertarian objection, which I addressed in my prior column and two blog posts (here and here).  There is a version of the libertarian objection that I do share: Namely, that the government should not be dictating healthy behavior.  Suppose, for example, that Congress included as part of its health reform legislation a provision requiring all Americans to see a doctor and then to exercise according to a customized age/height/weight chart.

The requirement to see a doctor would come close, in my view, to violating the common law right--assumed to be a constitutional right in the Cruzan case--to refuse medical treatment.  To be sure, a visit to a doctor is not quite the same thing as an operation, but the core idea of the right to refuse medical integrity is a kind of inviolability of the body.  Medical exams are intrusive and so we might at least think that the government needs a good reason to require a competent adult to submit to one.  In the litigation context, for example, Federal Rule of Civil Procedure 35 requires that parties seek a court order for a medical exam of another party; that flips the default under the Federal Rules of permitting discovery of relevant material unless a protective order is sought.  Rule 35 does not create or recognize an inviolable right against a medical exam but it does, in my view, reflect the notion that such exams are prima facie intrusive.

Even if one thinks that it's okay for the government to order everyone to see the doctor, an order to exercise does appear to go to far.  It looks a lot like conscription, which, if justified in wartime, is still extraordinary.  Further, it is not clear how a mandatory exercise regime could possibly be enforced absent something like Orwellian surveillance.

All that said, it is still worth noting how much more intrusive these hypothetical examples are than the actual individual mandate.  Indeed, we could well imagine something like the individual mandate coming with strong incentives--though not compulsion--to exercise.  Suppose that the overall health insurance system allows insurers to "experience rate."  Smokers would pay higher premiums, fit people would pay lower premiums, and so on.  To be clear I'm NOT proposing this.  What I am saying is that a truly private health insurance market would almost certainly go this way, and in an important sense that would be better for society: People would be forced to internalize the health care costs of their behavior.  That's not to say that all manner of experience rating would be defensible: E.g., screening people out for genetic predispositions over which they have no control would strike most people as unfair.  (It certainly strikes me that way.)  And even with respect to costly behaviors like smoking, unhealthy diet, and couch-potato-ism, there is something cruel about increasing the health insurance premiums for people who engage in these behaviors.  But perhaps that just goes to show that I'm not that much of a libertarian.