A backdoor to mandating supposedly health activities

The recent ruling by a Virginia court and writings about it (see this good one by law prof Jason Mazzone in particular) has brought up interesting questions about liberty with regard to commerce, but also health.  Background:  The new U.S. health care financing law has, at its center, the requirement that everyone buy health insurance from private companies.  This sort of addresses a few problems of the insurance market, though not nearly all of them (I have written about that before, but will not go into it because it is not the point today).  But because Obama is so easy to roll, there is no “public option” of the government acting as insurer and giving people the opportunity to buy into that program.  Thus it is not possible to claim something like “this is a standard government program where you are paying money (call it taxes or not) and getting services, but you have the option of steering your money to a private provider instead”.

Thus, people are being told the must spend money on a particular product from a private merchant, unconditionally.  While such conditional requirements are nothing unusual (you must buy liability insurance if you are going to drive a car; you must pay for various services to engage in complex transactions like owning a house), it is not clear if there is any precedent for such an unconditional universal requirement for a rather major expenditure.

Of course, it does really make any difference how things are labeled.  This is not actually different from imposing a health care financing tax, outsourcing administration of the service, and offering some program choice.  But people do make a big deal about labels.  After all, the standard fiction is that the Master Settlement Agreement was a big award paid by tobacco companies when actually it was an extra-legal sales tax on future consumers (smokers).  But the press consistently misses this (probably due to naivety) and the rich anti-tobacco organizations that benefit from MSA money, as well as the states who benefit even more, (probably due to self-interested cynicism) never mention that their funding is coming from a sales tax on smokers that is hidden (making it easier to raise taxes even higher and pretend that smokers create net cost for the rest of society when the opposite is true), arguably unconstitutional in most jurisdictions (taxes generally require legislative action, but this was negotiated by a bunch of private lawyers who got very rich from it), and terribly regressive.

The MSA was ugly public policy because those who benefit from it pretend it is something it is not.  If the health insurance mandate survives court challenges, however, it will be because it was judged as what it functionally is (a new tax and government service, privately administered) rather than what it pretends to be (a private transaction). 

But then the fun really begins.  The nanny statists who work to prohibit various choices in the name of protecting people from themselves will have a brand new arena.  They will have the precedent of forcing people to buy insurance to protect their health (though really the rule exists to protect the health of the financing system by not letting people with low risk opt out of it), and so will no longer feel constrained to merely prohibit actions they do not like.  They will feel empowered to mandate actions they do like. 

Just wait.

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