Health care reform and the Surpremes (The government doesn't give us free broccoli)

Well the Supremes are going to be center stage this week as they consider cases on different sides of  the health care reform act Obama and Congress approved two years ago.

Key to the discussion: Can the government, under the Constitution's Commerce clause, force people to buy health insurance? It's often framed in that simplistic way, but it's much more complicated than that.

We can't compare it to anything else the government might make us buy because the circumstances are different.

 Those who try to simplify the argument (and there are many taking advantage of the average person's unwillingness to spend a lot of time understanding the issue), argue the government can't require you to buy broccoli or gasoline for that matter, so they should NOT be able to require you to buy health insurance or any other product.

Actually, they don't require you to buy it. If you don't buy it you pay a minimal surcharge of like $95 a year, which I understand escalates a bit after that but not more than say $2,200 a year for a single person making $100,000. (Which, actually would be a pretty good price for emergency health care whenever you needed it, no co-pays etc. I'll explain that next).

The argument is different because "Everyone consumes" health care or if they don't consume it they have the right -- given by Congress actually -- to consume it free of charge if you can't pay.

That law, codified under the Emergency Medical Treatment and Labor Act (EMTALA)42 USC Sec. 1395dd) was passed in 1986 by Congress and enacted "to ensure public access to emergency services regardless of ability to pay"

So, it's a law that anyone can get free health care. It reasonably follows that we all should have to pay for that, and it shouldn't be pushed on through the insurance system, but rather spread out through taxation or fines. The mandate is simply collecting a payment for what we gave away in 1986.

The Supremes could rule that since the Commerce clause allows for the providing of goods (health care)  by the government, the government should be able to require payment. Take away the guaranteed goods (health care for free) and you can take away the requirement.

The parallel argument that the government doesn't require us to buy broccoli would have to be set up to show that the government had at one time required broccoli producers to give you broccoli free if you met government's criteria.

We know that's not the case.

Good luck Supremes! Give me a call if you'd like to bounce some ideas off me.