The Virginia House of Delegates passed House Bill 10–The Virginia Health Care Freedom Act–by a 72-26 vote yesterday. This Act in part prohibits imposition of “a penalty, tax, fee, or fine, of any type” on Virginians who do not wish to contract for health care coverage or to participate in a particular health care system. It is not clear that this law actually protects anyone from a federal mandate to purchase health insurance, which is the intent of the bill. Imagine, for example, that the Assembly passed a law prohibiting imposition of a penalty on Virginians for possession of marijuana and you see the problem: a Federal ban or requirement probably trumps state law.
In any event, our Legislature as a body apparently believes in the questionable constitutionality of a federal mandate to purchase a good or service. Indeed, this morning on the radio I heard a proponent of the bill make just this assertion: that the Federal Government has no authority to issue such a mandate. He went on to say that the Federal Government has never required Americans to purchase a good or service under penalty of law.
Not exactly. The Militia Act of 1792 states in part:
“That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.”
With this Act, Congress required militia members to purchase (or otherwise procure) the equipment necessary for military service. To be sure, the delegated power to “provide for organizing, arming, and disciplining the Militia” arguably gives Congress Constitutional authority for this mandate, where no such delegated power exists for a health insurance mandate. But it is not accurate to say that Congress has never required purchase by individuals of a good it thinks they should have.
The constitutionality of mandating the individual purchase of health insurance seems pretty straightforward as a matter of regulating interstate commerce, especially if Congress permits purchase of insurance across state lines. Precedent for requiring citizen activity that apparently violates individual freedom to manage personal resources exists in some labor law applied to striking workers, and particularly in sanctions against draft-eligible citizens who refuse to register, or report if called. If Congress can force purchase of firearms and equipment by militia members (a status that accrued to residence in the US), force health care workers to report for duty, and draft citizens for military service even in peace time, then a power to mandate individual purchase of health care coverage seems within its powers.
Further, government power to limit the potential for the spread of disease by quarantine or requiring treatment could apply to this discussion. As a public health matter, ensuring widespread access and use of health care services appears to fall pretty clearly in the broad power to secure the “general welfare.”
The Virginia House of Delegates sent the message: that body opposes health care reform in the name of the citizens of the Commonwealth. What’s not clear is why they think they can bind the Federal Government as they do so.