George Will on the Constitutionality of Health Care Reform

George Will has an op-ed in yesterday's Washington Post where he questions the constitutionality of the Democrats' plans to introduce an individual mandate to purchase health insurance, as part of the overall reform package. His skepticism on this point is based on the quite reasonable view, presumably held by all good conservatives, that the government's primary purpose (and thus the Constitution's) is to protect individual liberties from encroachment by the majority. Under this theory, government action that possesses even broad democratic support, and certain societal benefit, should be struck down in the event it causes the individual to be inappropriately compelled or constrained.

The first item to point out here is Will's very selective discomfort when it comes to this kind of thing. In short, he thinks a lot of things are unconstitutional, and doesn't mind saying so, particularly when those things are championed by liberals (campaign finance reform comes to mind). On the other hand, he's significantly less troubled in other areas which would seem to have equal relevance to the subject of individual liberty (for example, unrestricted surveillance, indefinite detentions, and generally, selective enforcement of the first, fourth, fifth, and eighth Amendments). To my mind a "true" conservative the way he describes one might worry more about the government's asserted right to spy on, arrest, and torture anyone it suspects of illicit activities, but I can't seem to find any op-eds from Will to that effect. Seems to me Will's conservatism is one where money talks, and that's about it. (Even his recent abandonment of ambiguity on the subject of Afghanistan relies heavily on simple cost-benefit analysis.) And listen, that's fine - he's entitled to as wide and selective a range of opinion as anyone else, and more often than not he has something very worthwhile to say - but let's not pretend that his brand of constitutional analysis is any more or less pure than that of the unwashed masses. His are as fundamentally political a set of priorities as anyone's, at the end of the day.

On the merits, Will correctly points out that the constitutional basis for the mandate, for its supporters, is going to be the "necessary and proper" component of the Commerce Clause. His is a slippery slope argument - if Congress can call an individual mandate to purchase health insurance necessary and proper, what's to stop it from saying the same thing about, say, calisthenics enforced by the threat of increased taxes? Of course, Will knows very well that the law doesn't require the political branches to behave in a manner that ensures absolute logical consistency; good judgment, checked by the electoral process, is both built into the system and relied upon to produce flexibility and prevent excess. That's why Will is less interested in actually striking the mandate than he is in shoring up the conservative case against it. But for the record, I can tell you why the individual mandate is actually "necessary", in much more than a political sense: the private insurance market can't survive without it. As I've written before, the whole point of the individual mandate is to compensate for the new regulations that force health insurance companies to cover sick people at reasonable rates. Once you tell those companies that they can't deny coverage based on existing conditions or cap payouts in times of catastrophic need, they will absolutely certainly go out of business unless there are enough healthy people paying into the premiums. So if you want to continue relying on the private insurance market to raise the coverage level, an individual mandate to buy into the system is the only way to keep the whole thing solvent. Sounds necessary and proper to me - I'd be shocked if that wasn't enough for the High Court.

Not to put too fine a point on it, but there was always another path to take here. If the government were permitted to operate a public health insurance option, there's be no need to regulate the insurance companies, and no need to enforce an individual mandate. Which means that the public option would not only have increased health insurance coverage across the country, but in comparison to the current plan, it's also is friendlier to both individual liberty and free market principles. Not sure, but I think I just made the case that "true" conservatives should have been supporting the public option all along...