It’s the semantics

Attorney General Ken Cuccinelli, R-VA, is fighting implementation of HCR in Virginia (using Virginia taxpayer money) based on two semantic points:

  1. The commerce clause of the U.S. Constitution allows Congress to regulate “activities that substantially affect interstate commerce.” Cuccinelli is arguing that under this clause, the U.S. cannot require individuals to purchase insurance or pay a fine for not doing so because not purchasing insurance is not “activity,” rather, he says, it is “inactivity,” non-participation in health care commerce.
  2. The Constitution gives Congress broad powers of taxation, and the fine for not purchasing health insurance would be collected when taxes are filed. Cuccinelli argues that the fine does not qualify as a “tax,” and is rather a “penalty” not covered by the powers of taxation.

Regarding the first argument, nobody chooses not to participate in health care. When the car stops spinning and flipping over and they pull you out of the wreck unconscious, you don’t have a card in your wallet that says, “I participate in health care. Please take me to the hospital.” There is no alternative to taking you to the hospital. If you put a card in your wallet that says “I chose not to participate in health care. Let me bleed to death here on the road,” the responders will still take you to the hospital. They are mandated to care for you, and they don’t have time to check your wallet. They are checking your vital signs and tying you to a rigid transport device in case your neck is broken. You will go to the hospital. If you have insurance, your insurance pays. If you don’t have insurance, everyone else pays for you in the form of higher premiums and/or tax-supported services. Everyone is in the health care market because no one can be turned away from an emergency room. Refusal or neglect to purchase insurance in this case is an active choice to let everyone else bear the cost when you need care.

Regarding the second argument, in Virginia we have a $500.00 uninsured motorist fee. If you go to register a car and you do not have insurance, you pay that fee. An uninsured motorist gets nothing for the $500.00. It is not a tax. It is a pure penalty for not purchasing insurance. The fee is put into a fund that is parceled out to insurance companies to reimburse them for their losses due to uninsured motorists interacting with their paying subscribers. So in Virginia, you pay a penalty for not purchasing the required insurance, you get no insurance for the fee, and the fee goes to subsidize the insurance that other residents have purchased.

In view of this Virginia requirement, it appears that Cuccinelli’s argument is political as well as semantic, since he has raised no objection to the Virginia statute. Virginia solicitor general Duncan Getchell told the court that by requiring individuals to purchase a commercial product, the U.S. government was exercising authority that is “unprecedented, unlimited, and unsupportable in any serious regime of delegated, enumerated powers.” I take issue with the “unprecedented,” because Virginia has a precedent. One well-documented requirement to meet a defined need does not qualify as “unlimited,” and since the need is defined and documented, it is apparently not “unsupportable.”

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