If the Obama administration’s argument that Congress has the authority to require every individual to purchase health insurance is upheld by the Supreme Court, many students may be in for a big surprise.
Yes, students. The administration argument, briefly, is that access to affordable health care is so essential to both personal and national security that individual choice of when or even whether to purchase insurance must be subordinated to the government’s authority to regulate the health care market. Congress’s authority to regulate interstate commerce is so pervasive, the administration argues, that it necessarily includes the power to require individuals to participate in that market, and to fine them if they refuse.
Here’s how Judge Henry Hudson of the United States District Court for the Eastern District of Virginia summarized the government’s argument, on his way to rejecting it:
the large majority of the uninsured regularly migrate in and out of insurance coverage. That is, the uninsured, as a class, often make, revisit, and revise economic decisions as to how to finance their health care needs. Congress may regulate these economic actions when they substantially affect interstate commerce…. Critical to the Secretary’s argument is the notion that an individual’s decision not to purchase health insurance is in effect “economic activity.”
This is not the place to explore the weakness of the administration’s argument, but what is relevant here is the Obama administration’s sweeping claim that inaction, a decision not to do something, can be “economic activity” of such consequence that it is subject to governmental regulation and control. If that is true then some students may have to think twice, or more, about their choice of school, choice of major once enrolled, and choice of field of graduate study.
An Unprecedented Argument for Regulatory Authority
The administration’s dramatic and unprecedented argument for the reach of its regulatory authority, for example, casts a new and possibly ominous light on one striking passage in President Obama’s address to the joint session of Congress on February 24, 2009. Discussing the imperative of educational reform, the president said:
It is our responsibility as lawmakers and educators to make this system work. But it is the responsibility of every citizen to participate in it. And so tonight, I ask every American to commit to at least one year or more of higher education or career training. This can be community college or a four-year school; vocational training or an apprenticeship. But whatever the training may be, every American will need to get more than a high school diploma. And dropping out of high school is no longer an option. It’s not just quitting on yourself, it’s quitting on your country – and this country needs and values the talents of every American.
But all needs and all talents are not created equal; the country needs more of some than of others. Indeed, as I pointed out on MTC last spring here and here, the landscape of higher education is littered with a seemingly endless and ongoing series of reports
pointing with alarm to the “underrepresentation” of women or blacks or Hispanics or Aleuts (or usually all of the above) in the STEM fields of science, technology, engineering, math and outlining STEM-“diversity” steps that must be taken in order to save the nation from destruction by competition in the “new global economy” with those more diverse than we (like the Japanese?).
The examples of official and quasi-official findings of shortages in the STEM fields are too numerous to cite, but among them are:
– A handbook issued by the American Association for the Advancement of Science noting perceptively that “if women, underrepresented minorities, and persons with disabilities were represented in the U.S. science, engineering, and technology workforce in parity with their percentages in the total workforce population, this shortage [of skilled American workers] could largely be ameliorated.” (Well, yes, I commented, if we had more women and minority skilled workers, we’d indeed have more skilled workers.)
– A National Academies report concluding that the underrepresentation of women “deprives the United States of an important source of talent as the country faces increasingly stiff global competition in higher education, science and technology, and the marketplace.”
– A report from the AAAS and the Association of American Universities outlining the necessity to “draw more women and underrepresented minorities into science fields to boost economic and security goals” and concluding that “[a] diverse, globally oriented workforce of scientists and engineers” is essential to ensure continued U.S. economic leadership.
– A report from the University of Southern California’s Center for Urban Education, according to an article in Inside Higher Ed, “embraces the idea that the United States must — for competitive, economic and other reasons — draw more, and more qualified, young people into STEM fields to help ensure that it has skilled workers for the information age.”
– An MIT Report of the Initiative for Faculty Race and Diversity asserting that it “is intrinsic in the mission of excellence in science and engineering education that we engage a truly diverse faculty; we must diversify our faculty or we lose in competitive advantage and in mission” and that “[i]f we do not succeed in the diversification of faculty across the nation, we constrain ourselves and limit our success in all fields of endeavor.”
President Obama, as we have seen, asserted to a televised joint session of Congress that “it is the responsibility of every citizen” to educate himself, that “dropping out of high school is no longer an option,” that not developing your talents is “quitting on your country,” a country that needs the talents of all its citizens. If all these blue-ribbon reports are to believed (and who in higher education, the media, the foundations, the government doubts them?), and if what Judge Hudson described as the administration’s “expansive interpretation of the concept of activity” is upheld, then any student — especially any “diverse” or “underrepresented” student — who has the talent and opportunity to major in a STEM field or enter a STEM profession who chooses not to do so may also be at risk of federal sanctions.
There is an additional large gob of grease on the slippery slope that could lead from regulating health care decisions to regulating educational decisions: people can’t be trusted to make the best decisions about what’s in their own interest. As Rep. Vernon Ehlers (R, MI) said in a 2009 hearing of the House Committee on Science and Technology’s Subcommittee on Research and Science Education,
The jobs of the future are going to require of workers a basic understanding of the principles of math and science. If we do not persuade women to pursue these fields, they are already [risking] cutting themselves out of a great job future.
“In other words (actually, pretty much the same words),” I commented here, “women who choose not to major in math or science don’t know what’s good for them, and need instruction and guidance from their guidance counselors in Congress.”
Limitless Possibilities for Educational Regulation?
Now, however, given the administration’s new claim of expansive, virtually unrestrained power to fine people for their decisions not to buy something, there is no reason to believe that the government would feel the necessity of limiting itself to persuasion regarding choosing fields of study and employment. Indeed, the possibilities for government regulation of educational choice seem almost limitless:
– It has already been seriously suggested that Title IX be used “to withhold Federal or foundation-derived funds from undiversified departments.”
– The EEOC, the Justice Dept., and the Dept. of Education’s Office of Education could could vigorously pursue “disparate impact” discrimination claims against undiversified institutions and even departments.
– Federal loans and grants to study non-STEM fields could be significantly reduced.
– Federal loans to students in non-STEM fields could be issued at higher interest rates than loans in STEM fields.
– Students with demonstrated ability in STEM fields who choose not to develop those talents (by choosing non-STEM majors, not pursuing a graduate degree in STEM fields, etc.), could be fined.
– Graduates with STEM degrees who do not enter STEM careers for a certain period of time could be fined or required to repay any loans they have received at a higher interest rate.
– Women and minority students who receive scholarships or loans could be required to enroll in insufficiently diverse institutions and undiversified classes and majors, on pain of losing their aid if they refuse. (If student athletes lose their football scholarships if they choose not to play football, why shouldn’t students who receive “diversity” preferences lose their aid if they choose not to provide “diversity”?)
Government regulations of educational choice along these lines may be bad policy, but it is hard to see how any of them violate a principle that allows a fine to be imposed on every Tom, Dick, and Jane who chooses not to buy a health insurance policy approved by the government.
Looking at the need for more women and minorities in STEM fields, on several occasions I have suggested Draft ‘Em! (also: Draft ‘Em Release 2.0 and Draft ‘Em Release 3.0). “If our national security really depends on having more women engineers,” I argued in one typical example, “perhaps women should be drafted and sent to engineering schools.”
I thought I was making these suggestions tongue in cheek, but that was back in pre-Obamacare days. Now I’m not so sure.