June 2021
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Is Mandating Insurance Unconstitutional?

It seems some things follow like night and day. So, within minutes of President Obama signing the healthcare reform bill into law, a small gang of state attorneys general filed suit to have the law declared unconstitutional. Their complaint? In short, they argue Congress has no power to make people buy some “thing” from a private company. As a strictly libertarian approach, they say it infringes the liberty of the individual. Of course, all the liberal law professors immediately burst out laughing in their blogs. This was the worst kind of political grandstanding in an election year. These attorneys general were using taxpayers money to make a political and not a legally sustainable point. Now, we could all wait for the judges to rule, but where is the fun in that. So here is this website’s own opinion.

The standard comparison is between health and auto insurance. In all but three states, there is a mandate for vehicle owners to carry a minimum amount of coverage. The argument in general terms goes that if it is not unconstitutional to force people to buy auto insurance, it cannot be unconstitutional to force people to buy health insurance. Except the comparison does not really stand up to analysis. Human biology being what it is, you cannot avoid breathing and the heart beating. But you do have a choice about whether to buy or drive someone else’s vehicle on the road. So auto insurance is mandated on the basis of your own economic activity. Health insurance would be a mandate based on your inactivity. Secondly, the insurance you buy if you do decide to drive is liability coverage, i.e. it is for the benefit of other drivers, their passengers, pedestrians and property owners. So the constitution is not offended if you make a free decision to drive and are mandated to protect third parties by buying insurance. But the constitution may be offended if you are required to insure your own health. There is a further distinction because the auto insurance mandates are all state-based. There is no federal mandate for auto insurance.

A better comparison might be the early Militia Acts requiring ordinary citizens to buy their own guns and ammunition so they could band together into an effective fighting force. This was an unconditional mandate. It was based on the national government’s need to maintain an armed force in a state of readiness, even though individual citizens might live hundreds of miles from any possible threat and might never actually have a need to fight. Yet this mandate as to gun ownership fits into the Libertarian view of the world, while aiming for a more universal form of health care is communism and therefore unpatriotic. There are, of course, more technical arguments based on the individual provisions in the Constitution but they only get boring. So we will leave you with the thought that, sadly, you have no right to challenge your state’s car insurance mandate on the ground it is unconstitutional. The only way of finding cheap auto insurance is to use sites like this to get quotes from the maximum number of insurance companies. Hopefully, the wider you cast the net, the greater the chance of finding a policy giving you the terms you need at a premium rate you can afford.

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