How To Preserve The Mandate

Obamacare – just because you think we need it, doesn’t make it constitutional.

Obaminationcare – just because you don’t like it doesn’t make it unconstitutional.

It is not enough that the healthcare bill needs to have mandated coverage to make it work to justify it as constitutional. It is also not the case that striking down the mandate is proof the rest of the bill should also be disallowed. The arguments presented for both of these bear no relation to a constitutional approval or disapproval; they are mere excuses for what the proponents want. Opponents of the mandate have legitimate concerns that it could set a precedent for future actions, although the arguments they present border on the silly. The arguments presented by proponents that without the mandate the system will not work and that everyone will be part of the system sooner or later, these are not sufficient to make healthcare unique. Other markets could be said to possess the same attributes. A finding that the mandate is constitutional needs to be crafted very narrowly so that the unique qualities of the healthcare system are used to preclude its application to other areas.
Healthcare does possess some unique attributes, though, that can be used to distinguish it from all other markets. The first is that there are few if any alternatives for many medical procedures, such as a heart transplant. The second is that there is no continuum of products that can be provided at various price levels. The third is that, by definition, the free market cannot provide for all who need healthcare. The fourth is that a consumer may become involved in the market without their consent in emergency situations. The fifth is that providers can be mandated, either by law or professional ethics, to provide their services free of charge if necessary. The last is that there are no secondary markets for most medical care.
For most markets, there are alternative products, producers, or services that can fulfill the needs of a consumer. The alternatives may be less efficient, more expensive, or less attractive, but they can usually fit the bill. Or, something else can be used that is totally different from what was originally desired and make the consumer just as happy – you want new shoes, but settle for a new pair of gloves. In healthcare, those substitutions are usually limited or non-existent. There may exist several forms of treatment for a medical condition, but the choices are limited and often only one is appropriate. You cannot just decide to forget about your ailing heart and decide you’d rather have your stomach treated or just forget it all together if you want to live.
In most markets there is a price continuum that consumers can avail themselves of to buy a product at the price they wish. One can spend a few bucks to thousands of dollars for a pair of shoes, but almost everyone can buy them. For most of medical care, especially that required for serious problems, there is no price continuum or not a meaningful one to most consumers – a heart transplant will cost too much regardless.
A free healthcare market cannot cover everyone, regardless of how low the insurance or how high the deductible. This is true of every market to some extent, but when a person has a serious ailment, the consequences of not being able to afford the product can be deadly. When the situation is serious enough, such as failing kidneys, a consumer has no choice but to seek treatment if they are to live.
Unique to healthcare is that a person can become a consumer of the product and be responsible for paying for it without giving consent. In many emergency situations a person is not capable of giving consent, but the standards of the industry is to treat them and worry about payment later. Often the consumer is still liable for the cost of the treatment even without agreeing to do so. You also do not get to pick the product at the price you want to pay, that is dependent on your medical situation.
Medical professionals and hospitals, unlike any other economic sector, are obligated to provide their services for anyone who is in urgent, life-threatening need, regardless of their ability to pay. Because of this requirement, medical providers must charge their paying customers a higher price to cover non-paying or low-paying patients. As a result, there cannot be a truly free market in healthcare, it is a prisoner to ethical requirements.
Lastly, there does not exist any secondary or used markets for most medical care and most cannot be provided on your own. The only secondary markets that can be said to exist are actually not markets at all, but services provided by various governments, such as local clinics or county hospitals. Even privately run clinics are mostly financed by the government, so that in effect there is no secondary free market. Used markets are limited to some medical devices, but do not exist for most of the system. Consumers are forced into the primary market. Also, consumers cannot provide most medical services themselves or through the informal economy, the procedures are just too complex or dangerous.
A single payer system would work, but that would involve ever greater government involvement than the current proposal. Total dependence on the free market may, perversely, prove even more intrusive since it would require a degree of transparency in information, such as doctors’ patient results or hospital costs to make it work effectively, that many would find intolerable. It may be the mandate is the least burdensome on our citizens and not the most. The argument over the mandate, therefore, should rest upon the unique circumstances of the healthcare market. It should not just depend on whether we think it is needed or we find it intrusive, but because healthcare, in order to be available to everyone, needs something more than other markets do. Some markets may have one or more of the characteristics that are described here, but none has all of them. That is what makes it constitutional for Congress to use the mandate.