I have wondered how constitutional it would be if Congress mandates private health insurance for ALL Americans with no way to opt out. Well NYT looks into this and it seems likely if such a bill passed lawsuits would spring up. The idea of being forced to purchase private pricey insurance products will have Americans in a fury as the polls show.
There may be questions of forcing purchase, which fall under the commerce clause and or due process. NYT links to a LA Times op ed by lawyers on the matter. Some sections are below that to me are very important. If there is no opt out then the mandates for private insurance are more vulnerable to be challenged in court. Ironically for all those Dems who took single payer off the table from day one may soon find single payer or Medicare for all may be the soundest constitutional way to cover everyone for reasons explained below....
I can foresee a significant court challenge here if Baucus and the AHIP folks get their way of forcing everyone to purchase private insurance without a govt funded INCLUSIVE PUBLIC OPTION FOR ALL. The forcing of folks to buy insurance, uncontrolled in cost or quality, is a highly regressive tax that would destroy middle America. It may be the Constitution which very well might save the people from such a cruel law.
First a quick taste of where the bill is headed. From LA Times today on how those cozy with insurers will write the rules. Yep-
...Reporting from Washington - Healthcare overhaul legislation moving through the Senate Finance Committee would put crucial rule-making authority in the hands of a private association of state insurance commissioners that consumer advocates fear is too closely tied to the industry.
The National Assn. of Insurance Commissioners currently writes model laws and regulations that individual states are free to accept or discard. Under the bill by Sen. Max Baucus (D-Mont.), it would craft a model rule governing "health insurance rating, issuance and marketing requirements" that would become "the new federal minimum standard without any further congressional action." States would be permitted to deviate from the standards only by appealing to the Department of Health and Human Services.
In effect, the bill would allow the group to write many of the new rules on issuing and marketing insurance to millions of uninsured Americans who would be required to purchase policies.
"The NAIC is clearly an organization that is dominated by the insurance industry," said California Lt. Gov. John Garamendi, a former state insurance commissioner.
"I think the NAIC has an important role to play. They have a lot of knowledge, but I would be concerned about giving them authority to set the rules."
http://www.latimes.com/...
Could being forced to buy private pricey insurance be unconstitutional? Well..
NYT:
The Right to Bear Insurance Cards
http://prescriptions.blogs.nytimes.c...
LA Times last year had a write up on this issue, which NYT referenced in their "Right to Bear" article-
... A private health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine or obtain treatment outside of the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."
Requiring Person A to give money to Person B is a "taking," whether or not something of value is given in return. Let's say the state required every resident to buy milk, on the rationale that milk consumption benefits public health. That's either a constitutionally forbidden taking (of money) or a violation of due process.
These constitutional rights aren't absolute.
Given a compelling enough reason, government can interfere with your person and property. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling. We are not aware of any opt-outs for most people in the mandatory health insurance plans being discussed.
There are far more sensible and constitutional ways to provide health coverage. Government-funded insurance (such as Medicare or single-payer insurance) or regulation and tax subsidies to encourage voluntary participation.. . are both more efficient in containing costs and avoid the slippery slope of unconstitutional mandates.
http://articles.latimes.com/...