Tuesday, March 16, 2010

The Insurance Mandate, State Legislatures, Regional Opposition and the Specter of Inviting Civil Disobedience

Adding to the the drama of health reform, the Virginia General Assembly has passed its own legislation that seeks to nullify the proposed Federal health insurance mandate. That makes this New England Journal of Medicine article on the States' prospects timely reading.

Readers won't be surprised that author Timothy Jost dismisses this as right wing-funded and politically motivated posturing. He also points out that it is also not without precedent. Past attempts to emasculate Federal law include outlawing school desegregation and decreasing access to Medicaid funding for abortion after rape and incest. Mr. Jost says this manuvering didn’t work then, and he doubts it will work now. As an aside, however, he cautions his doubt is not ironclad, because he describes an insurance mandate as “constitutionally vulnerable.” Supreme Court, here we come.

But it’s his summary of the mandate's two other downsides that make for the really interesting reading:

1. Resistance in 34 State legislatures is a telling symptom of the depth of popular opposition to health reform. While a widely followed metric is whether a national majority of Americans support or oppose the plan, the national patchwork of simultaneous disdain and support bodes poorly for the ultimate success for this piece of social legislation and the ascendant governmental activism behind it.

2. Even though the insurance mandate has enforcement provisions, they’re ultimately based on the behavioral economics of voluntary proactive compliance, jazzed up with some "or else" tax penalties - which aren't that large anyway. This good intention may run head first into what could become an open invitation to civil disobedience akin to the spectacle of the Federal enforcement of its marijuana laws. What will be the effect of passing a law that, whatever its merits, leads to an significant proportion of the U.S. population being in technical violation of that law?

The DMCB traveled on Route 81 today. On one of the overpasses, there was a group of 5 people waving to the traffic below and waving an American and the telltale Do Not Tread On Me flag.

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