States Balk At Proposed Mandatory Health Care Coverage
While efforts to pass health care reform legislation are currently at a standstill, some states are already braced to object to requirements that all Americans carry health insurance. This proposed mandate, which was included in both the House and Senate versions of reform legislation, allows the government to impose financial penalties on individuals who do not carry health insurance.
According to a recent Detroit Free Press column, legislatures in 36 states – including Michigan – have proposals pending to reject such requirements in the name of states’ rights. Those who oppose the requirement, such as the Health and Human Services Task Force at the American Legislative Exchange Council, claim the mandate it akin to “the government requiring something of you because you exist.”
“This is not like requiring care insurance for the privilege of driving,” said Jorge Amselle, director of public affairs for the council. “If you exist, you have to have health insurance.”
Generally, the Bill of Rights gives the states “the powers not delegated to the United States” in the U.S. constitution. However, the Constitution acknowledges that the government was established to “promote the general welfare.” Additionally, the Constitution also provides Congress with the power to “regulate commerce…. Among the several states.” This is commonly referred to as the “commerce clause” and is liberally construed. Specifically, under Congress’ ability to regulate any state-level activities having a “substantial effect” on interstate commerce, Congress may easily have the power to regulate insurance coverage.
After the jump - Constitutional considerations on mandatory coverage
As early as 1944, the Supreme Court ruled that the insurance industry is expressly under the regulatory power of Congress due to the fact that it is inherently involved in interstate commerce. Specifically, Justice Hugo Black opined that “perhaps no modern commercial enterprise directly affects so many persons in all walks of life as does the insurance business.”
Additionally, all taxpayers are already indirectly required to subsidize the costs of health care. In addition to the Medicare program, which requires taxpayers to pre-pay for the costs of their retirement health care, taxpayers fund treatment provided under the Emergency Medical Treatment and Active Labor Act (“EMTALA”). EMTALA, also referred to as the anti-dumping law, requires all hospitals that receive payments from Medicare/Medicaid to provide stabilizing treatment to patients with emergency conditions, without consideration of insurance coverage or ability to pay. While it may be considered “unfair” to require individuals to carry insurance, it is doubly unfair to allow an un-insured individual to let a medical symptom languish because he/she does not want to pay out-of-pocket for a doctor visit, and instead waits until the symptom has evolved into a life-threatening illness. At this point, the individual will be forced to go to the emergency room and frequently incurs thousands of dollars in medical costs, which are paid for by taxpayers.
While it appears that Congress does have the authority to mandate coverage, it will be interesting to see how – and if – such states’ rights arguments will play out.
*The opinions expressed in this post are solely those of the author, and do not necessarily reflect the opinions of other attorneys at Frank, Haron, Weiner and Navarro.
