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Insurance mandates

October 11, 2009

Re "Law and health," Opinion, Oct. 6

I admire Erwin Chemerinsky and have always valued his articles, except this one. His argument that there is nothing unconstitutional about requiring individuals to purchase health insurance or to use taxes to pay for those who cannot afford it may be correct from a legal point of view, but in practice it confuses two separate issues.

In the real world, the first assertion -- that the Constitution allows Congress to impose mandates, such as purchasing insurance -- although true, is misapplied in this case because it would open the door to more abuse from the industry. The second, regarding government coverage for those who can't afford it, presumably under Medicaid, would be OK by me if it were not shotgunned into a forced marriage with the first assertion.

Here's an alternative bottom-line: The private health insurance industry doesn't need protecting under the Constitution; we do. It controls the delivery of healthcare and the debate, screening out the best solution: single-payer.

Steve Fine

North Hollywood

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Chemerinsky's categorical statement that federal government-mandated and forced healthcare is "unquestionably constitutional" is based on arguments of "precedent" -- in other words, on past Supreme Court decisions regarding the commerce clause.

He never considers the possibility -- or many of us would say the obvious certainty -- that decisions establishing those precedents are themselves unconstitutional.

The Constitution is a clear blueprint for strongly limited federal government power. If precedent is used to justify unlimited federal government power, which is the antithesis of the original Constitution, the only logical and common-sense conclusion is that the Constitution has been perverted by precedent. It is time to acknowledge that the Supreme Court has made serious mistakes and that those precedents should be overturned.

Lawrence Goldberg

Burbank

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The article failed to address the real constitutional defect in a federal mandate to purchase health insurance.

The only basis for the mandate is Congress' power to regulate interstate commerce. The one constant in Supreme Court cases defining this power is that Congress sought to regulate activities in which people chose to engage. The health insurance mandate would cross the line from regulating what people choose to do into requiring what people must do. It would, for the first time, require that Americans spend their own money to purchase a particular good or service.

If Congress can do that, there was no need for "cash for clunkers." Congress could have required people to buy new cars. Incentives are one thing, mandates are another. Eliminating freedom of choice by requiring Americans to purchase health insurance would be unprecedented for Congress and eliminate what few limits remain on federal government power.

Orrin G. Hatch

Salt Lake City

The writer is a U.S. senator from Utah.

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Chemerinsky argues that, according to Supreme Court precedent, the proposed healthcare reform bills will be considered constitutional.

Unfortunately, he is probably right.

The author of our Constitution, however, would disagree. In Federalist 45, James Madison writes, "The powers delegated by the proposed Constitution to the federal government are few and defined." According to Chemerinsky's reasoning, Congress' powers are anything but few and defined.

It's impossible to reconcile the Constitution's author's vision of a limited federal government with Chemerinsky's interpretation of the Constitution.

Jonathan Moore

Monrovia, Md.

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Chemerinsky may be correct about the question: "Can Congress require all to purchase insurance?" We cannot expect the Constitution to protect us from a loss of freedom because of a poorly conceived healthcare reform plan generated by Congress. That is why elections are so important.

One might ask: "Why would a Warren Buffett or a Bill Gates be required to buy health insurance?"

Likewise: "Why can't I set aside a substantial amount of money in a health savings account for small healthcare costs, and buy catastrophic insurance for the large healthcare costs that might occur?" This clearly would be much less costly over time.

Also, please tell me: "Why would I be required to pay for all healthcare procedures through an insurance company and be burdened by brokers, insurance executives, insurance company stockholders' profits, claims adjusters, etc. that stand between me and my doctor?"

Doug Chapman

North Tustin

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