Stefan Bauschard Debate

Supporting Debate Around the World

Stefan Bauschard Debate - Supporting Debate Around the World

Should the US government require its citizens to have health care?

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[Download the file on this topic from Planet Debate]

The U.S. government should not require its citizens to have health insurance.

The March Public Forum resolution once again (we’ve had many Public Forum and Lincoln-Douglas topics on the issue of health care) introduces the question of the role of the government in providing health care.

This time, the focus of question is on whether or not the government should or should not require citizens to have health insurance.  This question is actually quite timely and interesting, as it was the subject of a recent court case – National Federation of Independent Businesses v. Sebelius – that was decided in June of 2012.

This case was quite significant because it dealt with a critical provision of the Patient Protection and Affordable Care Act – the significant, national legislation that was passed by the US Congress in 2010 with the goal of providing health care coverage to all Americans.  The critical provision in this legislation that was the subject of the court case was whether or not the government can require all Americans to purchase health insurance.

The mandatory provision in the insurance is a critical provision because the legislation requires all health insurance companies to sell insurance to individuals regardless of whether or not those individuals have a pre-existing condition.  In order to get insurance companies on board to accept this provision in the law, it was important that individuals were also required to buy insurance.  Also, practically speaking, if individuals were not required to buy insurance then they could simply wait until they might become very ill and then purchase the insurance when they needed it because if just the provision of the law that required insurance companies to sell insurance to people with pre-existing conditions still existed, the insurance companies would have to sell it to them.

<Peter Smith, Professor, George Washington University Law School, October 2011, Boston University Law Review, p. 1726-7

The Act’s principal objective is to make insurance more readily available and affordable, regardless of the insured’s health condition. Of most relevance here, the Act seeks to accomplish this goal by prohibiting insurers from denying coverage of pre-existing conditions and from denying eligibility based on health status, medical condition, or disability.  Requiring insurance companies to provide coverage to people who are sick, however, can have perverse effects. Under such a scheme, healthy individuals could refrain from buying (and thus paying for) insurance until the moment that they need care, because they would know that they could not be denied coverage at that point solely on the basis of their newly pre-existing condition. In other words, the persons most likely to purchase insurance would be those who are most likely to require the most (and most expensive) care. Under such a system, because there would be relatively few healthy insureds to spread the risk, premiums would skyrocket, many individuals would have difficulty affording coverage, and many insurers likely would be driven from the market. In enacting the ACA, Congress recognized that its direct regulations of the market for insurance – particularly the requirement that insurers extend coverage to people with pre-existing conditions – would be self-defeating if the Act did not also require all individuals to maintain health insurance, even when they are healthy.>

So for both political reasons and practical reasons, the mandatory requirement is a key part of the law.  Without the provision, it would be difficult for the law to function properly.

Since the mandatory provision is important to the overall workability of the law, this resolution does introduce the general question of whether or not the government should be involved in the provision of health care. Pro teams could argue that the mandate is bad because it makes it possible for the government to support health care for all citizens and that that is bad objective for the government to have.  Similarly, Con teams could argue that getting rid of the provision will undermine the Affordable Care Act and that the Act is critical to fulfilling the government’s responsibility to provide health care.

Although the resolution introduces the general question of the government’s role in providing health care, this post is going to focus on the arguments about the appropriateness of the mandate itself.  For general arguments about the desirability of the government’s role in health care, you should download the September-October Planet Debate L-D release.

It is very important to note that the penalty for not complying with the law – for not purchasing health insurance if you do not have it through your employer or through the government (Medicare/Medicaid) is a tax.  If you do not have health insurance after the law goes into effect (2014), then you have to pay a tax penalty to the Internal Revenue Service (IRS).

The arguments related to the appropriateness of the mandate are primarily based on legal and philosophical questions.  Given the prominence of the Supreme Court case, I will focus most of the remainder of this essay on the legal questions, though I will also introduce the philosophical issues.

The central legal question, and the central question in the Supreme Court case, is what legal authority does the Congress have to pass the mandate.  Detractors of the provision do not have to prove that the government does not have the authority to pass the law; it is the responsibility of the government to prove that they do have the authority to pass the law.

The reason that this true is because the Constitution concerns issues of enumerated powers – that the federal government (the central government in Washington, DC) only has powers that are explicitly given to it by the Constitution.  The rest of the government powers are left to the states.  The framers of the Constitution did this intentionally – they wanted there to be a balance of power between the states and the federal government (referred to as federalism) – in order to prevent a concentration of power in the central government that would risk tyranny.

There are a number of potential rationales for why the government has the legal authority to pass the Act.  Some argue that the government has the power under its tax authority (remember, that the penalty for the non-purchase of insurance is to pay a tax), others argue that it is part of its Commerce Clause power, and others argue that it is supported by its ability to provide for the general welfare.

On a 5-4 decision, the US Supreme Court upheld the mandatory provision of the Act as part of Congress’ tax power because the penalty is a tax.  It is important to note here that five Supreme Court justices thought that it was a legitimate extension of the power to tax.

Four justices though that the mandatory provision of the Act was supported by Congress’ Commerce Clause power.  Commerce is the exchange of goods and the commerce clause gives the federal government authority over the exchange of goods for two reasons: (1) to prevent the states from taxing each other to death and (2) to ensure the national economic welfare. The specifics of what Congress can and cannot regulate under the commerce clause is subject to debate. In 1994, Congress passed the Gun Free Schools Act, which made it a crime to carry a gun within fifty yards of school property. The Supreme Court, in U.S. v. Lopez  (1995), struck down the Act because, they argued, gun crimes in schools were unlikely to “substantially” hurt the economy and therefore  ”substantially” affect interstate commerce. Through this decision, the Supreme Court established a standard that states that a piece of federal legislation deemed legitimate through reference to the Commerce Clause must have a substantial relationship to interstate commerce/the economic well‑being of the nation.

Advocates of Commerce Clause authority argued that individuals will inevitably purchase health insurance and some point in their lives, that insurance is a multi-billion dollar market, and that health care affects other parts of the economy.

Another potential area of authority for the health insurance mandate is the Necessary and Proper Clause.  Peter Smith, cited above, argues that the Supreme Court “has interpreted the Clause sot Authorize Congress ‘to enact last that are ‘convenient, or useful’ or ‘conducive’ to the ‘beneficial exercise’ of Congress’ specific affirmative authority.’  Smith argues that the providing health care, and incorporating a mandate to buy insurance to make it work, is part of Congress’ Necessary and Proper Clause authority.

It is important to note here that while the Commerce Clause, taxation power, and the Necessary and Proper clause are potential sources of authority that the government can use to legally defend its actions that they are not reasons that the federal government should require its citizens to purchase health insurance – they are just legal rationales as to why it is permitted to do so. Con teams will still need to win that the mandate is a good policy, not simply that the government has the legal authority to mandate the care.

It is also important to note that if the Con wins one reason that the government has the legal authority to legislate a mandate that they have the authority to do so.  So, for example, if Con wins that the government has the authority under the Commerce Clause and the Pro wins that the government doesn’t have the authority under the Necessary and Proper Clause, the Con has still demonstrated that the authority exists.

So far I have focused on the legal issues/objections related to the mandate.  There are also policy objections to the mandate and the provision of national health insurance as well. Although I will not attempt to cover the entire health insurance debate in this essay, I do want to address a couple of the objections.

One common policy objection is that providing national health insurance allows for free-riding because some people are able to access lower cost health care than they would otherwise get.  The problem with this argument is that people free-ride on health care now.  For example, many people are completely unable to pay their hospital bills and the way that hospitals recover costs is by generally keeping prices high enough for those that pay to cover that cost.

Another objection to the law is that the poor should not have to pay for health insurance.

mandatepoor

This is a very weak objection because people who have to pay more than 8% of their income for health insurance do not have to carry it and people with incomes below the threshold for filing taxes.

In arguing that the government should require citizens to purchase health care, Pro teams need to focus on two issues – that the mandate is important to providing health care for all citizens and that providing health care for all citizens is a desirable goal.

Pro teams arguably have it easier because they can either win that it is undesirable to have national health care or they can win that the government does not (legally) or should not (philosophically) have the authority to mandate health insurance.  Since the purpose and function of the mandate is to support national health care, if the Pro wins that a national health insurance system supported by the government is a bad idea then they simply win – there is no other rationale that the Con can use to trump that.  If the Pro wins that the government does not (legally) or should not (philosophically) have the authority then they can win as long as they can win that the illegality of the policy.

Most Pro arguments will likely focus on the general undesirability of the government being involved in national health care from a policy perspective, as well as the philosophical and legal arguments.   The most common philosophical argument will be a libertarianism objection that argues that the government should not force individuals to participate in the purchase of a given good and that the government should not be involved in the redistribution of wealth.  Libertarianism is covered extensively in this Libertarianism Strategy Guide and it has been the subject of many previous Planet Debate releases.

This argument will be coupled with a general overreaching argument that says that if we start accepting mandates regarding the purchase of products then the government will start requiring us to purchase other products and subject us to other mandates. This “slippery slope” argument was actually made by many of the judges who dissented in Sebellius.

The basic legal argument focuses on the claim that the law is unconstitutional because Congress does not have the authority to enact it.  In the US, the federal government has a limited amount of governing authority and the rest of the governing authority is left to the states. The federal government only has the authority given to it in the Constitution, and if there is no authority for it to act then it’s action is directly unconstitutional and it could threaten the balance of power between the states and the federal government because it may be intruding on their area  of government authority. Since all powers not explicitly given to the federal government are generally considered to be reserved for the states, the Act may be a violation of states’ rights and threaten federalism.

federalism

[Federalism Strategy Guide]

In addition to covering the substance of the debate, I also want to make a number of general observations about the resolution and how the arguments will likely play out in the debates.

First, the Pro cannot defend anything else except a claim that the government should not mandate the purchase of health insurance.  There is no resolutional basis, for example, for them to defend a Single Payer system to replace the mandate.

Second, it may be a bit easier to be Con.  One, the Con only needs to win one source of legal authority for the government to pass the law in order to win that it is legal.  Two, the Supreme Court has already ruled in favor of the law. The Con can use that as a bit of a trump card in the Final Focus.  Third, many debate judges are liberal, and since the Pro can’t defend a replacement for the mandate, it may be easier to persuade judges at to the Con.

Third, it is very important for the Pro to weigh the philosophical and legal arguments in a way that favors their side. If they can win the legality debate, for example, they can argue that they should win because the government shouldn’t pass unconstitutional legislation even if that legislation is desirable. In a court, that is an obvious statement, but in a debate it needs to be well articulated and well-defended.

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