About face on the individual mandate

As stated in my previous post, as well as in conversations over the past year and a half with whoever would listen, Aetna CEO Ron Williams has been my synecdoche and perhaps whipping boy for the medical insurance industry. Prior to the PPACA’s (aka “Obamacare”) passing, he was a staunch advocate for the “insure everybody” mandate for insurers, a well as the individual mandate for health insurance coverage, from which his company was sure to reap a whole slew of low-risk policyholders. Now, he has changed his mind about the individual mandate. Perhaps, like Mahatma Gandhi, he has learned something in the interim. Maybe he knows what’s coming. In and op ed piece in Monday’s Wall Street Journal, Williams writes an essay telling us why he was wrong:

“I don’t say this lightly, as I have long been a vocal advocate of getting and keeping every American covered. As a society, we have a moral obligation to ensure everyone has access to affordable health care. We must find a way to cover those who are no longer healthy but need care.”

Here, he appears to be covering his tracks. This “morality” argument was, and is, one of the main selling points of PPACA. We were constantly harangued by being told that we were shirking our moral duty by “allowing” so many Americans to be uninsured. That made us evil, and who wants to be evil. Effective rhetoric, it was.

But society, or government” has no moral obligations. You cannot reward a society for being good, or punish society for doing evil. Only individuals can be moral or immoral.

In his essay Common Sense, the American revolutionary Thomas Paine observed a distinction between society and government. The former was “in every state a blessing.” The latter was, at best, a necessary evil, and, at worst, an intolerable one. Both societies – which are often called civilizations – and governments have their functions. The government’s primary purposes are to protect its citizens from those who would initiate the use of force against them, and to settle disputes among them. For this protection, individual citizens surrender some of their property into to have an authority to protect the rest. Governments can also appropriately act to provide facilities and services that cut across various spheres of interests. The Federal Aviation Administration’s traffic cop of the air is one example. The limits of various constitutional powers delegated to government are seldom clear. That is why we have courts.

Williams continues: “My early support for an individual mandate had always been grounded in this companion solution, supported by broadly funded subsidies for lower-income Americans.

Yet, as I studied the arguments for and against the individual mandate, it became clear to me that the legislation raises serious constitutional concerns.

“For starters, the legislative process that produced the Act was driven by partisan politics, and traditional oversight mechanisms that would have facilitated bipartisan and reasoned policy development were discarded in favor of rapid enactment.”

He has that right. A single statute that has 2000+ pages is ipso facto an abomination. One would hope that our lawmakers would at least be aware of what they are voting for. No Representative or Senator could possibly have read and digested a bill that size. Yes, they all have staffs that can do a lot of the work and prepare executive summaries, but no one can read and understand the ramifications of a document that is two and one-half times the length of War and Peace in the short time after the bill had been put together. I do not doubt, however, that each lawmaker who voted for it made sure their pet constituents were taken care of within the tome, or at least appeared to be. No law can possibly have that many provisions without producing tensions and contradictions. Furthermore, the manner in which back door deals and parliamentary chicanery was used to ram the bill through at the end was offensive. A law designed to fundamentally change the way that on-sixth of the economy works must beenacted in the most careful and deliberate manner possible. The manner of its genesis should be above reproach. It obviously was not.

Williams really gets to the main point when he observes: “Most seriously, Congress insisted on describing personal inactivity—in this case, the failure to purchase insurance—as interstate commerce within its regulatory reach. Americans were alarmed, rightly, that this could empower future legislatures to mandate that citizens engage in activities none of us would think reasonable today.”

Many have scoffed at the suggestion that upholding the law would authorize Congress to enact a mandate to buy broccoli as being absurd and extreme and never could happen. Even so, our system is designed to prevent that, and enlightened legislators would never do that. I agree, that is what the check and balances and division of the legislature into two houses of Congress was designed to do. When it fails to observe Constitutional limits, that is what the Supreme Court is for. History is replete with things that “could never happen.” The Nuremberg Law is a prime example.

As stated before, there is little doubt that the battle will end with the Supreme Court’s decision, whichever way it goes. It does appear that if it is overturned, Ron Williams and Aetna, at least, have given some thought as to how to put their industry’s house in order.

For Williams’ full essay, please see this link.

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