On July 1, in Richmond, Virginia, federal attorneys from the Justice Department squared off against lawyers from the Commonwealth of Virginia in federal district court to debate the merits of the state’s (and 20 others joining suit) claim that the Affordable Care Act is unconstitutional. The Justice Department claims that Virginia lacks the requisite legal standing and is seeking to have the case thrown out, but according to an article by Kevin Sack in the New York Times, the judge hearing the oral arguments was appointed by President George H.W. Bush, so we’ll see if judicial activism plays a role or not.
It’s important to note, as other district courts prepare to hear arguments from other states challenging the law in the coming months, that whatever the outcome is in Virginia could set a precedent that other judges decide to follow. At issue: Can Congress compel people to engage in a specified economic transaction? Opponents of the law say no–Congress can tax and regulate commerce only once a citizen enters into a commercial transaction. Proponents, however, suggest that the lack of insurance is itself a transaction–that people are shifting costs onto others, expecting to receive care from emergency rooms, safety net facilities, and charitable physicians when they need it rather than taking responsibility for their care.
I envision a third way: Establish a conditional mandate, much like what the law aims to do now, but change the penalty. People remain free to choose not to obtain coverage, and instead of facing a government-imposed penalty for their failure to comply, they simply accept full financial risk for their decision. That means, that should they fall ill, they would not be permitted to receive care at no cost from an emergency room or otherwise. Nor would they be able to buy insurance at the onset of illness–they shouldn’t be allowed to game the system. If all this sounds unusually harsh, it’s because it is. But it also demonstrates why people’s decision not to obtain coverage should be considered as a delayed business transaction–and why health reform as currently designed is, in my view, entirely constitutional.