The Day After

Yesterday was shocking and depressing for people with faith in the Constitution and freedom. Much of the day was filled with people trying to make sense of the Obamacare (now ObamaTax) decision.  So see a broader perspective for what Justice Roberts did. The best of these I read was Sean Trende’s piece, “The Chief Justice’s Gambit," which was definitely worth reading.

But I am not in favor of a “broader” purpose for the Supreme Court. Just tell us whether a law passes constitutional muster or not. And if the explanation is so obscure that plain-thinking Americans familiar with the Constitution itself can’t see where you’re coming from, maybe we need to mostly ignore the reasoning as far as precedent is concerned.

One good thing is that the majority of the court (Roberts plus the four voting against constitutionality) state clearly that the mandate cannot be construed as a constitutional extension of the commerce clause. In fact, Roberts spent so many pages (about 20) saying that, the immediate assumption by CNN and Fox News was that the law must have been struck down, which they needed to walk back a few minutes later.

What I think should not have happened was that, rather than throw out a bad law (that’s a euphemism for what this monstrosity actually is), Roberts went out of his way to find a way to allow it. He declare that the mandate is simply a tax. The biggest tax on middle and lower class Americans (or maybe bigger than on any people at any time in history)—even though Obama et al spent a great deal of energy and words asserting that it was not a tax. [Ironically, in oral arguments, the administration’s lawyer, Verilli, had to argue one day that the law was certainly not a tax, and another day that it certainly was; even Sotomayor pointed out that you can’t have it both ways.]

This law was passed without any help from Republicans—at a time when no GOP help was needed. This is all, in its entirety, the fault of Democrats, who had total control of both houses at the time. Still, it required finagling, bribery, and midnight manipulation to shove it through one weekend night in March 2010. I think we can say without doubt, if this had been billed as a huge tax on low and medium earners, there is no chance it would have passed.

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One description I saw of how this mandate/tax works goes something like this:

Customer: No thank you. I don’t want to purchase that pack of  gum.

Salesperson: OK, tax on that will be $2.35. 

I spent much of yesterday doing summer reading: 1776, by David McCullough. I think I’ll post more about this next week, in honor of the 4^th of July. But the idea that struck me was that, during the early part of the Revolutionary War, the good guys were severe underdogs. If they could have stepped back and seen how outgunned they were, they might have resigned themselves to the tyranny. But they trusted Providence (the hand of God intervening to help them) and just did whatever they could conceivably do for their great cause. They were mostly everyday people, unqualified for what was required of them. And yet we know the outcome.

It may be that what we just experienced was the equivalent of Bunker Hill:

Bunker Hill was proclaimed a British victory, which technically it was. But in plain truth His Majesty’s forces, led by General Howe, had suffered more than 1,000 casualties in an appalling slaughter before gaining the high ground. As was observed acidly in both London and Boston, a few more such victories would surely spell ruin for the victors (p. 8).

We suffered a literal loss yesterday. But it may be that the limit to the commerce clause, as well as the ability for states to opt out of the Medicare section—followed by determined follow-up by voters and their new representatives this November—this “victory” by the anti-freedom side will surely spell their eventual ruin. With the help of Providence, may it be so.

Unique Markets

During last week’s Supreme Court oral arguments concerning Obamacare, last Tuesday the discussion covered why health insurance would be a unique market and therefore in need of government intervention. So we’ve been discussing this definition at home the last few days. And my son Political Sphere, as an exercise, took the definition for unique market and applied it to yet another “unique” market. Let’s lay some groundwork for the definition first. Page numbers refer to the official transcript.

Verrilli (the government lawyer defending Obamacare) says healthcare insurance unique because it is characterized by the fact that virtually everybody “is either in that market or will be in that market, and the distinguishing feature of that is that they cannot—people cannot generally control when they enter that market or what they need when they enter that market (p. 5).

Justice Roberts answers:

Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.

You don’t know when you’re going to need it; you’re not sure that you will….

So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? (pp. 5-6).

Verrilli responds that the difference is that insurance is a market, which isn’t a particularly helpful distinction. So Justice Alito adds another analogy:

Do you think there is a market for burial services?.... Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money to pay for it, you’re going to shift that cost to somebody else. (pp. 7-8)

Justice Scalia helps refine the definition by asking about food: “Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli” (p. 13).

Verrilli responds that, while everyone participates, “it is not a market in which your participation is often unpredictable and often involuntary” (p. 13).

A couple of pages down, Verrilli responds overall to these other markets: Verrilli (p. 15-16):

I would have thought that your answer—can the government, in fact, require you to buy cell phones or buy burial that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be, yes, of course, they could (pp. 15-16).

So, in sum, the health care market is unique because

·         Everyone participates at some point.

·         Timing of need is not necessarily predictable.

·         There is a primary system of paying for the product/service, which is therefore subject to commerce regulation.

·         There are free-riders who affect the cost for participants in the market.

If healthcare insurance is unique, then it is the only market that meets the criteria, so we wouldn’t have to worry about encroachment of government in other markets. But Verrilli already admitted other markets could be construed to also be unique.

So, here is Political Sphere’s application  of the definition on yet another market: housing.

Does the housing market have free-riders? Absolutely, in more numerous ways than the health care market. You have various versions of squatter laws; you have rent controls limiting price increases on those already renting; you have delinquencies and defaults on mortgages. And laws generally make it a long process to kick out someone that has current residence in a property.

Does almost everyone use it at some point in their life? Again this is an obvious yes, perhaps even more true than health care, because even people who, by choice, live on the streets often lived in a house once.

And because these two items are true, what can be mandated? The payment mechanism for the majority of housing (all housing, not just private residences) is to have a mortgage. So by this argument, if the Congress can mandate that everyone has health insurance to pay for their health care, then it only stands to reason that Congress can mandate everyone have a mortgage to pay for their housing.

Since there are four items on the list, let me add, just to be thorough, that choice about needing shelter can also be somewhat unpredictable, even for the homeless; severe weather makes the need urgent, and weather, while seasonable, can be unpredictable. But since ancient times, shelter has been considered a basic need, up there with air, water, food, and clothing. You can choose to go without for a while, but when the blizzard hits, you might suddenly find camping under open skies untenable.

Unique still means one of a kind, unike all others, right? As Inigio Montoya would say, “You keep using that word. I do not think it means what you think it means.”

Eventually, Justice Kennedy pointed out our mistrust of the “unique market” argument: “And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique” (p. 104).