I had another argument with my conservative co-worker today, and I had a realization about the debate over the individual mandate and the lawsuits against it: While the individual mandate can be presented in a manner that sounds questionable, it is, in fact constitutional, and I think that the lawsuits against it are doomed to failure.
Let's be clear, there are really two attacks against the individual mandate that get phrased in the same way. The phrasing: "The government does not have the right to force me to buy something from a private corporation" is used by both the right and the left, but it means two different things.
From the left, the sentiment is usually with regards to insurance companies being less than reputable. I see this as less an argument against an individual mandate and more an argument for a public option, and is a legitimate concern. I will disagree with my fellows who hold this belief only in terms of tone and utility, not on substance.
From the right, this argument is more insidious, to the point of being nearly a red herring. The goal here is not to destroy the individual mandate as such, but to use its destruction as a tool to destroy some of the other key provisions of the healthcare bill, and to create an excuse to drive prices (and therefore profits) even higher by blaming healthy people who "don't buy insurance because they're healthy". Opening the door to letting people "choose" not to buy health insurance allows corporations to "encourage" people to make that "choice". I can imagine the sales pitch now, a collections company offering to use the same tactics to get sick people off of an insurer's rolls.
It is the attacks from the right that spawned this lawsuit, and it is those attacks that I am addressing here.
But back to the core issue of the constitutionality of the individual mandate:
The federal government has the authority to tax individuals. A tax to ensure the availability of, say, emergency medical services is constitutional, at least conceptually. (Though I am sure there is an unconstitutional way to go about it). There are costs to the government associated with requiring hospitals to provide care to people in an emergency room who cannot pay.
What the government is doing, with the individual mandate, is essentially imposing a flat "right to available healthcare" tax.
Individuals who choose to avail themselves of a private insurance plan that will pay for emergency room visits, and other kinds of care, receive what is effectively a tax deduction for the burden they do not place on the government.
But it gets better!
Since almost all Americans are expected to avail themselves of health insurance, it would be a needless administrative waste for the government to collect the tax on all Americans and then give them their tax money back as part of their rebate each year. SO rather than waste taxpayer money, the government will simply collect this 'tax' on a per-exception basis.
Last but not least, in the language of the bill itself, the mandate is presented as "the right to decline to participate in health insurance". Don't want to participate in health insurance? No problem, just reimburse uncle sam for the money you'll cost him using the emergency room eventually.
Just thought I'd share these thoughts with you, and give my implied prediction on the result of the silly-suit being used as political theater.