David Cox: What’s bad for the goose …

Column by David Cox
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Barack Obama’s signature on the health-care bill had hardly dried before Virginia’s attorney general, Kenneth Cuccinelli, filed suit declaring that requiring individuals to buy insurance is beyond the scope of federal power.

He follows the thinking of the General Assembly’s first-in-the-nation bipartisan exemption of state residents from the proscriptions of the then-unpassed national mandate to purchase insurance policies.

Congress has power to regulate interstate commerce (Article I). But, Mr. Cuccinelli argues, “We contend that if a person decides not to buy health insurance, that person—by definition—is not engaging in commerce, and therefore, is not subject to a federal mandate.” Since such actions were neither anticipated nor permitted under the Constitution, they are precluded by the Tenth Amendment which reserves all such unmentioned matters to the states.

Well, maybe. But there are a few other matters to consider.

Like Article VI of the Constitution, which says that what Congress does under the Constitution is “the supreme law of the land” and supersedes state acts. Yes, if it’s deemed unconstitutional, then Congress can’t constitutionally do it. In ages past, states tried to define what was unconstitutional, but the doctrine of “nullification,” I thought, had expired along with the Confederate States of America.

Indeed, since then, Congresses have been doing similar things for years. One Congress decided to make everyone, with few exceptions, join up for Social Security, like it or not. Then Medicare—a veritable health insurance program for when one gets old (if 65 can be considered “old”: I no longer do)—which sounds pretty close to “Obamacare” to me.

Then there’s the draft: All males 18 years of age sign up to be called if need be to serve in the armed forces whether they want to or not. If not, they’d better have a good excuse or else they face stiff penalties.

If our AG wins his case, would all these would be banned as well? That really would shake things up.

In fact, the consequences could be even greater still. Mr. C’s case implicitly questions something that states have also done for years. For example, Virginia insists that I buy auto insurance, whether I want to or not. If I don’t, I pay $500/year to the state as an “uninsured motor vehicle fee.” Since then I’m still liable for damages for an accident, it’s really cheaper to get that insurance, and so much wiser. But there’s the principle of the thing: I have to buy it, or pay a fee/fine/whatever, because the Commonwealth of Virginia insists that I do. If the U.S. cannot, why can Virginia? Only because it’s a state and not the federal government? That’s rather weak. If it’s bad for the Feds to do something, why is it OK for the states?

After all, Mr. Jefferson, on a different topic, opined that “the legitimate powers of government extend to such acts only as are injurious to others.” If my neighbor does something that “neither picks my pocket nor breaks my leg,” it’s OK, right? So if I go without insurance, what does it cost him?

Actually, my not having insurance can cost him plenty. I intensely recall sitting with a family after their son/brother drove his motorcycle into a tree, without benefit of helmet or light. He existed for nearly a week on intensive care unit machinery until, blessedly, he slipped away. Since he also had no insurance, a combination of the hospital, those who are insured, and taxpayers picked up the tab. His stupidity picked my pocket (and broke a lot of hearts).

To require motor insurance isn’t just for the protection of the driver. It is also to protect everyone else—the victims of an accident which they did not cause, the families all around, and ultimately the society which must absorb the costs of the uninsured. So too with health insurance.

To those who complain about the costs of this lawsuit to the taxpayers, Mr. Cuccinelli says the only bill was $350 to file it. Never mind that time is money, and he and his staff clearly put time into drafting it. The real cost could be in the unintended consequences if he wins; and those costs could be enormous.


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