Not only would the Democrats' health care plan be bad policy, it's downright unconstitutional. So say some reform-bill opponents who object to the plan's proposed mandate that individuals buy health insurance.
Their argument has been trotted out in Congress in recent months and now it's come home a winner in Richmond, Va.
Virginia's General Assembly recently completed passage of a bill aimed at nullifying any federal mandate that would require Virginia residents to carry health insurance. Republican Gov. Bob McDonnell says he'll sign the measure. Virginia is the first state to take the anti-mandate process this far, but others are contemplating it.
Without a requirement that individuals buy health insurance (such as Massachusetts' state-run plan has) the Democrats' plan could well fall apart. Unless healthy people who might be tempted to go without insurance in the absence of a mandate are included in the overall pool, those actually insured would on average be worse risks, and thus more expensive to cover. Insurance companies, under severe stress, might quit the field.
Spread it out
Insurance, after all, works by spreading risk as widely and evenly as possible. The reform plan's mandate would cover nearly everyone and, crucially, the plan provides subsidies for lower-income people to help them pay their premiums.
So, do the mandate's opponents have a constitutional case?
Ultimately, that's up the justices of the U.S. Supreme Court. To Democrats, that may not be a comforting prospect - but our federal court system is grounded in long-accepted principles and precedents, and they strongly favor a finding that a carefully drawn mandate passes muster.
One precedent comes from Virginia itself, which in the 1950s and '60s attempted to "interpose" its state government between Washington and those Virginia school districts that didn't want to end segregation. Eventually, that embarrassing effort was held unconstitutional.
And in general the principle that state law cannot nullify federal law - embodied in the Supremacy Clause of the Constitution - is, as one commenter puts it, "simply beyond debate."
Also, the Constitution's Commerce Clause gives to Congress the job of regulating interstate commerce, which health care - a sixth of so of the economy - definitely is. If Congress deems an individual mandate essential to ending the threat that a health-care cost and availability crisis poses to the economy, it would be well within its rights.
One for all
Ultimately, the health insurance mandate is to be enforced as an income tax matter (although with no criminal penalties). Congress clearly has the power to tax in the health-care field. Check your paycheck - we're all paying for other folks' Medicare.
If the prospect of a winning case isn't behind Virginia's effort, what is? Pure politics, partly. Republican leaders are pushing to generate as much opposition as they can, on as many grounds as possible. Virginia Democrats, several of whom in the Assembly voted for the nullification bill, are reeling after recent GOP wins in the state. For conservatives and libertarians, states' rights arguments continue to resonate.
And, in truth, the mandate to carry health insurance would be a new thing. It's easy to characterize it as an erosion of liberty.
But who really thinks a system that leaves so many people uninsured as ours does, at such dire health and financial cost, and that piles the uninsureds' medical bills onto everyone else's back, is any way to go? A mandate is a rational and reasonable underpinning of improvement. Congress has it within its power to make it happen.