quote:As I recall, the great debate in the Senate was between this device (the individual mandate) and something called the government option. And the government option was described as being something akin to socialism, and I think there's a bit of a point to that. But what is striking, Senator, is that I don't think anybody in the world could argue that the government option, or indeed a single payer federal alternative, would have been unconstitutional. It would have been deplorable. It would have been regrettable. It would have been Western if not Eastern European, but it would not have been unconstitutional. And it's odd that this (the individual mandate), which is an attempt to keep it in the private market, is now being attacked.
Regarding those critics who claim that the health care mandate infringes on personal liberty, as guaranteed by the 5th and 14th amendments to the Constitution, "that question was answered in 1905 by a unanimous (Supreme) Court in Jacobson v. Commonwealth of Massachusetts, upholding...the imposition of a fine for refusing to submit to a state-mandated smallpox vaccination.
"By refusing vaccination, Jacobson was endangering not only himself but others whom he might infect. By refusing the much less intrusive and less intimate imposition of a requirement that one purchase health insurance if one can afford it, a person threatens to unravel the whole scheme designed to protect by health insurance the largest part of the population....The Jacobson case, which has been settled precedent for more than 100 years, shows conclusively that the mandate is not an unconstitutional imposition on individual liberty...
"To sum up: Insurance is commerce. Health insurance is undoubtedly commerce. Congress has the power to regulate commerce, and that means Congress may prescribe, in Chief Justice Marshall's words, a rule for commerce. The health care mandate is a rule for commerce."
Testimony of Charles Fried, Beneficial Professor of Law, Harvard Law School, and Former U.S. Solicitor General, Reagan Administration, 1985-1989
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