Rep. Jackie Speier (D-CA) argued on C-SPAN last week that the upcoming review of ObamaCare by the Supreme Court won’t overturn the law, because ObamaCare’s mandate is just like those imposed by states on auto insurance. CNS News’ Eric Scheiner imagines the reverse: what would auto insurance look like if it were handled like ObamaCare? Only fans of Monty Python could conceive of the result:
During a March 8th interview on C-Span Rep. Jackie Speier (D- Calif.) was discussing the upcoming Supreme Court date focused on Obamacare.
When asked what would happen if part, or all of the healthcare law was overturned she said, “ I don’t think that it’s going to be overturned. We have a long history of requiring proof of auto insurance at the time of registration of a vehicle, mandatory responsibility to carry auto insurance. So this individual mandate for health insurance, I think, will be held constitutional.”
I’ve addressed this so often in the past that I’ll just reiterate my rebuttal from December 2010, when Eric Holder and Kathleen Sebelius tried making the same argument:
This is such a bad argument that it staggers the imagination why the administration would still be making it. Drivers carry required insurance to cover damage done to others, not themselves, for one thing. It’s not applicable at all. Furthermore, states impose the insurance requirement, not the federal government, because states license drivers and vehicles. Driving is, after all, a voluntary activity conducted on public property (roads); there is no requirement for licensing or insurance for those who drive only on their private property. People who don’t drive on public roads aren’t required to buy a license or the insurance.
There are other problems with this analogy as well. Those who do have auto insurance only file claims when significant damage occurs. Auto insurance doesn’t pay for routine maintenance, like oil changes, lube jobs, and tire rotation. That’s why auto insurance is relatively affordable.
Also, auto insurance is priced to risk. If a driver lives in a high-crime area, then the premiums will rise to cover the risks associated with theft. If they drive badly (get moving violations and accidents), premiums will go up, or in some cases, the insurer will drop the driver. Policies are priced for risk according to age as well; the youngest and oldest drivers pay more due to their propensity for causing losses. Those who drive well and present a lower risk get rewarded with lower premiums. Right now, the federal government is preventing insurers in some instances from risk-pricing health insurance to impose government-approved fairness. That means we all pay more, removing the incentive to lower risk.
Finally, let’s use another related analogy: fire insurance. If we forced insurers to write comprehensive policies on burning homes, we would have no insurers left in the market. However, Holder and Sebelius want health insurers to do the same thing — and need the mandate to force all of us to assume that risk through the higher premiums that subsidize it. And, by the way, the government is doing exactly what Holder derogates in the essay — forcing insurers to write policies after the accident/fire/illness.
By the way, the Obama administration has now subtly shifted its defense in advance of the oral arguments at the Supreme Court:
A ruling that the mandate is unconstitutional could make it nearly impossible to implement other parts of the healthcare law—which is exactly the point the Department of Justice is highlighting in its most recent briefs.
Justice has aggressively defended the mandate as its own regulation of economic activity, but is now stepping up a separate argument emphasizing that the mandate is part of a broader regulatory scheme.
The shift moves the focus of Justice’s argument from the Commerce Clause of the Constitution to the Necessary and Proper Clause, which says Congress can make laws that are necessary for carrying out its other powers[.]
The briefs give a long history of failed efforts to expand healthcare coverage and say the new law’s purpose was to reform the overall system.
The Hill thinks that Obama and his team have moved to this argument in order to get Antonin Scalia on board with the mandate. Good luck with that. If Scalia bought that argument, it would make the restrictions on Congressional power in the Constitution meaningless. The “necessary and proper clause” allows Congress to make law within the restrictions of the Constitution, and is just a common-sense statement that Congress has the power to write laws in areas where it has jurisdiction — not that they can write any laws they please in order to solve all public questions. That’s almost as funny as Scheiner’s Mandate Clinic.
Update: I know Speier’s a Democrat, but for some reason I wrote (R-CA) after her name. I’ve corrected it above.