Justice Roberts, in ruling that the Commerce Clause doesn’t
authorize the federal government to buy anything from private businesses, while
allowing the federal government to tax people who don’t buy “it”, may at least
be making one valuable point. That is, private businesses, empowered to sell a required
product, could (if not heavily regulated) discriminate against disfavored
people, whereas the government would face political problems in trying to tax
the same people unfavorably. (Without
regulation, at least, imagine the problems for HIV+ people given such a
mandate.)
Where the idea could come back again is the idea of
requiring people to have insurance for problems they could cause from personal
Internet use. These possibilities
include libel or defamation, and perhaps inadvertent participation in sending
malware or conceivably even child porn if their home computers are hijacked.
There are people who think that “amateurism” has gone too
far and poses risks that are hard to control.
And the risks may come from users who don’t individually have a lot of
experience in having to provide for others.
Libel insurance for bloggers was offered through the Media
Bloggers Association in the fall of 2008; I’ve heard almost nothing about it
since. It was expensive. The National Writers Union tried to offer it
back in 2001, and ran into problems with their carrier refusing to cover
webmasters who covered “controversial” material, especially gay and lesbian
rights.
Property and casualty companies have dabbled with covering
incidental hazards with home computer us as part of a homeowner’s policy. Likewise, they’ve sometimes included it “umbrella”
policies on auto insurance for individuals who will certify they are not “entertainers”. But is a world where anyone can suddenly
become an Internet celebrity (as in the Chris Crocker biography interviewed on
my movies blog yesterday), that method certainly doesn’t sound
sustainable. More recently, around 2009,
a few property companies dabbled with charging social media users more because
they can become targets for thieves.
Putting all this in perspective, perhaps the country should
appreciate Justice Roberts and his constructive conservatism – recognizing that
requiring purchase of anything in the market could cause intractable problems
for some people.
It’s well to mention that the “conservatives” on the Court
had another constructive opportunity. That is, turn down the Individual
Mandate, but invite the states (not controlled under the Commerce Cause) to
pass their own individually. States,
under practical political pressure to make premiums affordable for their voting
constituents, would have no choice but to do so, by the end of 2013. There’s a practical advantage: the details of
the mandate could vary within each state, according to demographics and other
cultural issues. You could take
advantage of “federalism”, experiment, and gain experience in a hard-to-gauge
policy issue over time.
By the way, “breaking news”: The GOP wants a vote on repeal
of “Obamacare” by July 11. Unbelievable.
Update: Oct. 10, 2014
Some perusal of more recent web literature by property and auto insurers suggest that umbrella policies don't cover Internet speech covered in the course of business, employment, or professional pursuits. It has to be something essentially incidental. But the world of social media and self-publishing, often "non-commercially" or without significant monetary flow, certainly could complicate the picture. I'll hav to look more into this.
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