Free Markets, Free People
Constitutional? How can any seriously think ObamaCare’s mandate isn’t Constitutional?
That is precisely the take that Josh Marshall and much of the left have, amusingly, expressed:
A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face.
I’m not sure how Marshall actually believes "no one" took seriously the idea that the health care mandate was unconstitutional, unless he really means "no one who matters". And even then he’s wrong. So let’s boil it down to its real meaning – no one on the left, who consistently ignore the Constitution and matters relating to constitutionality, took the idea seriously.
I’m shocked – shocked I tell you.
Obviously a whole lot of people in the middle and on the right took it very seriously. So much so that at least a plurality of states have initiated law suits against it and/or passed laws rejecting it.
Marshall also claims that the “idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face.” Uh, OK, who exactly is claiming that? What is being discussed is not buying insurance. And the decision to not buy something has nothing to do with “economic activity” does it? So let’s turn Marshall’s sentence around: “the idea that not buying health care coverage does amount to “economic activity” seems preposterous on its face”.
Yes, I would agree – and so did Judge Hudson.
Speaking of Judge Hudson, Richard Epstein gives a pretty good summary of the key point in his ruling:
The key successful move for Virginia was that it found a way to sidestep the well known 1942 decision of the Supreme Court in Wickard v. Filburn, which held in effect that the power to regulate commerce among the several states extended to decisions of farmers to feed their own grain to their own cows. Wickard does not pass the laugh test if the issue is whether it bears any fidelity to the original constitutional design. It was put into place for the rather ignoble purpose of making sure that the federally sponsored cartel arrangements for agriculture could be properly administered.
At this point, no District Court judge dare turn his back on the ignoble and unprincipled decision in Wickard. But Virginia did not ask for radical therapy. It rather insisted that “all” Wickard stands for is the proposition that if a farmer decides to grow wheat, he cannot feed it to his own cows if a law of Congress says otherwise. It does not say that the farmer must grow wheat in order that the federal government will have something to regulate.
It is just that line that controls this case. The opponents of the individual mandate say that they do not have to purchase insurance against their will. The federal government may regulate how people participate in the market, but it cannot make them participate in the market. For if it could be done in this case it could be done in all others.
Read all of Epstein’s opinion piece by the way. There’s a lot more to this than just the point I made and he explains it very well. The usual suspects disagree.
Anyway, assuming this somehow stands and makes it to the Supreme Court, where after a good breakfast and a good night’s sleep Justice Anthony Kennedy decides “what the hell, Judge Hudson is right” and the court rules the mandate unconstitutional, what would be the ramifications?
Without the individual mandate, the whole Obamacare edifice crumbles. The judge did not rule that the entire law must be invalidated. But if the individual mandate goes, the insurance regulations — and most especially the requirement that insurers must take all comers without regard to their health status — will never work. Patients could simply wait to enroll in health coverage until they needed some kind of expensive treatment or procedure, and thus pocket the premiums they would have paid when they were not in need of much medical attention.
Or said more simply – without the mandate the whole of the law is unworkable. Without the mandate, repeal will seem to be the best option.
Oh, and watch the GOP on that point. When it was first passed, all I heard was “repeal, repeal”. Now I’m hearing “repeal and replace”. Uh, no – no “replace”. Fix the government side of things that are in such horrendous shape and driving the cost of health care up, but stay out of people’s private insurance.
And should repeal actually happen the insurance industry better get their heads out of their posterior and get busy finding ways to insure more people more cheaply (like creating products where employers could indeed move their workers to that would be outside the work place making insurance portable (thus no “pre-existing conditions”), affordable (large pool) and deliver quality care. Because, as is obvious, if they don’t someone will again try to do it for them.