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Must you buy health insurance?

Plans from Clinton and Obama may be unconstitutional.

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In fact, under the law, there's a big difference between participation in a government health program funded by taxes and privatizing such a program, with individuals forced to purchase private health insurance.

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Taxation involves representation, as when Congress appropriates money and controls a government program for the general welfare. This describes Social Security and Medicare. But government cannot simply delegate its taxing powers to private business.

What representation do we have in the insurance firms whose products we would be required to buy, at prices and terms they set? Can we vote out an insurer's board of directors for denying claims or paying its CEO a multimillion-dollar salary? Here, too, the Supreme Court has drawn a distinction between taxes imposed by government and mandatory fees set by entities with private interests.

A health insurance mandate is essentially a forced contract, in which one party (the insurer) gets to set the terms. You must buy their policies, even if you prefer to self-insure, rely on alternative medicine, or obtain treatment outside the system. In constitutional terms, such mandates may constitute a violation of due process or a "taking of property."

Requiring Person A to give money to Person B is a "taking," whether or not something of value is given in return. Let's say the state required every resident to buy milk, on the rationale that milk consumption benefits public health. That's either a constitutionally forbidden taking (of money) or a violation of due process.

These constitutional rights aren't absolute. Given a compelling enough reason, government can interfere with your person and property. It can require, for instance, that your child be vaccinated before attending public school. But there is usually an opt-out, such as private or home schooling.

We are not aware of any opt-outs for most people in the mandatory health insurance plans being discussed.

There are far more sensible and constitutional ways to provide health coverage. Government-funded insurance (such as Medicare or single-payer insurance) or regulation and tax subsidies to encourage voluntary participation (as in Obama's plan) both contain costs more efficiently and avoid the slippery slope of unconstitutional mandates.

Before the candidates get too far in their health insurance proposals, it would be good to consider the constitutional and policy implications of requiring Americans to buy private goods from private companies.

Karl Manheim is a professor at Loyola Law School in Los Angeles. Jamie Court is chairman of Consumer Watchdog in Santa Monica, Calif. ©2008 Los Angeles Times.