Where are the constitutional faces in the health care challenge?

March 23rd, 2012

Kevin Walsh argues there aren’t any!

In a recent post at The Volokh Conspiracy (“Public Opinion, the Individual Mandate, and the Supreme Court”), Ilya Somin compares the potential backlash that could be generated by a Supreme Court decision upholding the constitutionality of the mandate with the backlash generated by the Kelo case. The Supreme Court held in Kelo that government can use its power of eminent domain to take the property of an individual for use in a private party’s redevelopment efforts. The idea was that this would serve a “public use” by generating more tax revenue. One of the strategies of the challengers in Kelo was to highlight the plight of a particular individual, Susette Kelo, showing how the government was going to affect her life by taking her house away.

Contrast this strategy with that pursued by the individual mandate challengers. They have focused on the deprivation of liberty inherent in being ordered by the federal government to enter into, and stay in, an economic relationship with another private party. But this focus has not involved real people. Perhaps understandably, the mandate challengers have thus far chosen not to focus on the plight of particular individuals.

Some may have read news stories about Kaj Ahlburg, one of the original plaintiffs, and others may have read stories about Mary Brown, another one of the original plaintiffs. But nobody knows much about Dana Grimes and David Klemencic, who were added to the case at the Supreme Court level. The reality is that, after two years of litigation, we don’t know much about any of the individual mandate challengers.

It could be that the more we find out about their personal circumstances, the less plausible their challenge to the mandate becomes. What has been learned thus far has benefitted the federal government. Most notably, a story in the Wall Street Journal highlighted the personal circumstances of Mary Brown, who filed for bankruptcy and included unpaid medical bills in her list of outstanding debts. Seizing on this fact, the federal government pointed out in a brief filed with the Supreme Court that the likelihood of an individual having significant unpaid medical bills is much lower if that person has private insurance to cover their significant medical expenditures. This story shows how  learning about a particular individual challenger’s circumstances could allow one to construct a story about how it is plausible for a given individual to run up medical bills that would exceed his or her ability to pay. Such a story would give credence to the government’s argument that mandatory insurance is a reasonable means of preventing or combatting the cost shifting that takes place when unpaid medical care is delivered.

Ilya Somin replies that the faces aren’t important here.

Update: Tim Sandefur writes about one of the sympathetic PLF clients:

How about PLF client Matt Sissel?

A decorated Iraq War veteran (a Medic, incidentally) as well as an entrepreneur and a talented artist, Matt started a business to sell portraits and other artwork. He doesn’t buy health insurance because it doesn’t make financial sense for him to do so, given his other financial commitments, his health, and so forth. But thanks to the Mandate, he’s forced to buy insurance he doesn’t need with money that would be better spent growing his business, in order to subsidize insurance companies, who are, in turn, forced to provide insurance to people who are already sick. Matt is only one of the countless hardworking, responsible Americans whose rights are violated by the Individual Mandate and who are standing up for principle against this unconstitutional expansion of federal power. I don’t know what could be more sympathetic than that. It’s a shame that constitutional principle isn’t enough, but if you want to see how those principles affect real human beings, check out Matt’s story.

Unlike other cases in recent memory–Heller, Kelo, Raich, etc.–these faces just are not as prominent in the litigation.