Too often when we hear a new political idea, program, or initiative put forward we instinctively go to the merits of the idea. The paradigm goes something like this: (1) is it a good idea, (2) is it politically smart and [occasionally] (3) is it affordable? Rarely, do you hear anything about whether or not it is constitutionally permissible. The paradigm should be this: (1) is it constitutional, (2) is it sound public policy, (3) is it fiscally responsible and currently affordable, and (4) are there likely to be unintended consequences? Flipping the paradigm to ask about the constitutionality of a proposal before asking about the merits is more than just academic. Among other things the Massachusetts Miracle proved, with the issue of universal healthcare, that voters do get the difference between what a state government can do and what the federal government can or should do.
No one can debate whether having health insurance is a sound idea. Of course, we should insure ourselves against calamity and catastrophe. It is responsible citizenry and responsible stewardship. But the federal government cannot compel you to purchase health insurance anymore than they can compel you to buy life insurance, or carbon monoxide detectors or a home security system – all of which might be grand ideas. And that is why it is so important to have the paradigm in the proper order. Does the federal government have the constitutional authority to mandate individual health insurance? If so, find the authority for it and cite the Article and Section. And if you can find authority to allow the federal government to order you to buy health insurance, can that same federal government dictate to you the terms and conditions of that policy? And if the federal government can force you to buy health insurance and dictate the terms and conditions of that policy, can they force you to eat grapefruit instead of pizza, exercise instead of watching TV, smoke a pipe instead of a cigar, or smoke nothing at all? If not, why not? What is the difference from a constitutional perspective? If the federal government can regulate inactivity – like the failure to purchase health insurance – what can that same federal government not do?
There is a difference between whether something is a good idea and whether it is a constitutional idea. To appreciate and adhere to the distinction requires legislative humility – something we all wish we could mandate.
