Mandate Does Not Equal Freedom

Tomorrow we are expecting to hear the final verdict on Obamacare from the Supreme Court. In the aftermath there will be plenty to time to go over the reasoning. So for now there is either just predicting what’s about to happen, or restating the arguments. There are people better at both of those than I am, so this post will be short, and mostly directly you elsewhere.

My fairly safe prediction is that the mandate will be struck down, stronger than 5-4, more likely 6-3.

The question of whether the whole law will be struck down is less certain. By logic, when there is no severability clause (and in 2000+ pages, there was certainly room for such a clause), then the law cannot stand without the mandate. The debate in oral arguments included  the question of whether it was up to the Court to go through all of those pages and see what could be kept and what couldn’t; the justices were rightly indignant about being expected to do that. That is not going to happen. But some say that meant they should leave the rest of it alone, and others say that meant they should throw it all out and let Congress start from scratch. It will probably be 5-4 whichever way it goes.

If any part of the law remains, that will be incentive for opponents (the majority of Americans) to vote Obama out so it can be repealed ASAP. If none of it is left, there is fear Obama will do his dictator thing and insist on keeping socialized medicine limping along through illegal use of executive order.

So, no matter what decision comes down Thursday, we’re not yet free of this albatross.

In the last hours I’ve read a couple of commentaries worth quoting. Jay Cost talks about the mandate as a method of redistribution of wealth—not for “fairness,” from wealthy to poor.

First, the individual mandate represents an enormous transfer of wealth, completely independent of income or social status. It transfers resources from the healthy to the sick, from the young to the old, without regard to who has more money to begin with….

Second, the mandate itself is the method by which the Democrats have delivered literally billions of dollars’ worth of patronage to the key interests groups that lined up with them during the health care debate. The party sought to apply new layers of regulations upon doctors, nurses, hospitals, retirement care facilities, etc., and they rightfully feared a rebuke from these key “stakeholders,” as the Obama White House called them. What better way to buy their silence than to require 30 million Americans become their customers, whether they want to or not!

In reference to the failed public option, Cost said, “none of those stakeholders whom the mandate bought off wanted to compete with the government!”

This piece byVictor Davis Hanson wasn’t specifically about Obamacare, but more a referendum on the overall failure of the current presidency. The whole thing is probably quotable, but here are just a couple:

In less than 40 months, Obama destroyed the greatest bipartisan good will that any recent president has enjoyed, and has done more to discredit Keynesian neo-socialist politics than have all of talk radio, Fox News, and the internet combined.

And…

The private sector is not doing fine, but shortly will be when it is assured taxes won’t soar, energy will be cheaper, and Obamacare will cease.

One way or another, let’s look forward to the end of this monstrosity.

Constitutionality Questions

Yesterday the big news was that the Supreme Court will take up the question of the constitutionality of Obamacare. And not just the question of the legality of the individual mandate, but all the questions related to this legislation at one time. 

There’s good summary at the Law Blog of the Wall Street Journal. 

These are the questions the Court will address: 

• Can a challenge be brought to the law at all?
• Did Congress overstep its bounds in requiring every American to purchase health care?
• If the mandate is found unconstitutional, does the entire law need to come down, or can the rest of the law still stand?
• Are the law’s Medicaid amendments constitutional?

Some years ago I was talking with a friend, who was then a constitutional law professor, about some issue that seemed simple to me; he pointed out that it took years of study and practice to obscure things as well as the court justices can do. So, being unencumbered, here is my opinion on the four points, ahead of the hearing. 

The answer to the first question is yes. It would be better if we didn’t have to bring suit concerning a law enacted by our elected officials. But this one was pushed through using shady late-night, weekend, procedural technicalities to avoid succumbing to the will of the people or even the actual majority of elected officials—even during a time of complete Democrat control of both houses.  

The question itself relates to whether the penalty for not buying insurance is a tax. Ahead of passing the law, Obama’s team insisted that it was a penalty, not a tax. If so, then there is no roadblock to bringing the suit. But now they are claiming it is a tax. Supposedly, if it’s a tax, then you have to wait until it is enforced before it can be shown to be subject to a lawsuit, and these particular “taxes” wouldn’t be enforced for another year or two. This is a semantic question only, twisting words to suit themselves—as the administration would do with the entire 1200 pages of words in this boondoggle. 

The second question relates to the commerce clause of the US Constitution. This is Article I, Section 8, Clause 3: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The only difficulty is the definition of “regulate.” Over the years we have come to think of it as “make rules of control over,” but at the Constitution's writing the word meant, “to make regular, or expected.” How do you make sure international and interstate commerce can take place? Mostly get out of the way. Deal with trade agreements internationally, and make sure states don’t set up illegal embargoes against their fellow states. It’s about making sure free exchange can happen, not about controlling details of such exchanges. 

Is there anything in there to imply that the federal government has an enumerated power to force a purchase by every citizen simply because that citizen has been born? No. I’d say that’s a serious overreach. If you skew the clause to mean the federal government is allowed control over any issue that can affect the economy in any way, then you have granted total power to the government over all personal choice of how one uses the results of one’s life work. That is slavery, not a limiting enumerated power at all.  

The answer here, then, is yes, Congress did overreach, and the individual mandate is unconstitutional. That is how the Supreme Court must rule. The concern I have is that such a simple question of our personal freedom depends on the opinions of nine unelected individuals in black robes. If they rule correctly, great. But if they do not, that doesn’t change the fact that the law goes against the letter and spirit of the freedom-ensuring US Constitution. 

The third question is another yes. There is so much infrastructure in that huge bill, most of it we’re still unaware of, that are intrusions into our lives, we need to scrap the entire thing before the damage becomes endemic. There should be nothing about student loans in there. There should be nothing about taxing home sales and purchases in there. There should be nothing in there about setting up health clinics on school campuses in an effort to subvert parental rights. There should be nothing that discourages businesses from providing health care as a benefit to employees, thus forcing more and more employees to have no other option than a socialized federal government option.  

Is there any small piece of the law that might be Constitutional? Maybe. Show me. But, if so, couldn’t that particular piece be resubmitted for debate and vote as a bill on its own merits? 

The fourth question is technical. It appears to me that the effects on Medicaid are negative for the truly needy. My personal view, always, is that the federal government has no business using tax money for charity. There is no enumerated power granting such power. That is not to say that we as a people should ignore those truly in need. The answer is a combination of free market and philanthropy—both of which are hindered when the government steps in the way. How we get there from where we are, I don’t know. We have to do it without abandoning those who have had promises made to them and are truly in need, but we have to get back to the Constitution.  

I hope getting back to the Constitution will be the result of this hearing. It looks like arguments will be heard by sometime in March, and a decision should come down in June. This is well ahead of the election, and may have an effect either way. Whichever way the court decides, the other side will use it as an argument for recruiting votes to get things the way they want. And it will also point out the importance of having the right president at a time when additional Supreme Court justices will be chosen.