This is a quick, and as all things coming of the top of my head potentially embarrassing, post on the constitutionality of the Affordable Care Act:
Most commentary I’ve read argues that the commerce clause does/does not provide authority to Congress to implement the individual mandate. The tax and spending clause tends to get mentioned as the mandate being a type of tax.
I haven’t seen much debate on what would seem an easier route to Congressional authority: attaching the mandate a conditional string to health-related funding to the states. Is that out there and I’ve just missed it?
A policy in which we choose not to have fully private health care and insurance–in other words, one in which we have chosen not to simply let those die that cannot pay for coverage–requires some government spending. States and the federal government do most of that spending. I suppose it could be possible for the federal government to get out of the game, and allow that basically moral decision to occur within each state–do we, as a state, wish to create programs like mandatory emergency room coverage, social security, medicare, and medicaid to help prevent death by empty pocket? For now, though, the federal government has a major role in that prevention. Why can’t it attach conditions to its health-related spending just as the conditions of the drinking age attach to highway funds?
The condition couldn’t be the individual mandate – but could require states accepting funds to implement something that achieves the same goal, which in my mind is getting rid of the incentive to not getting insurance until sick.
