Obamacare’s mythological Constitutionality

With the Supreme Court set to hear arguments on Obamacare on Monday, former US solicitor general Walter Dellinger uses the time-tested myth/fact gimmick to assuage our fears that anything could possibly be wrong with a two thousand page, two trillion dollar bill that next to no one in Congress read before passage. We’ll start with ‘Myth’ #1:
1. The “individual mandate” forces everyone to buy health insurance.
Taxpayers who do not meet this requirement will have to pay a penalty that the law calls a “shared responsibility payment.” It begins at $95 for the first year and never exceeds 21 / percent of anyone’s annual taxable income… As a practical matter, the so-called mandate is just a relatively modest financial incentive to have health insurance.
Dellinger’s statement is akin to saying that the mafia doesn’t force anyone to pay back debts, it just provides a modest physical incentive by not breaking your legs if you do. “As a practical matter”, this is a distinction without much difference.
3. If the court upholds the health-care law, it means Congress has the power to require Americans to purchase any product.
One way to defend the law is simply to say that a requirement to purchase insurance or any other product sold in interstate commerce is obviously a regulation of that commerce. President Ronald Reagan’s solicitor general, Charles Fried, and conservative judge Laurence Silberman have adopted this view.”

One assumes that Dellinger would prefer to stop here, having made the argument that the Commerce Clause allows Congress virtually unlimited powers over supposedly free-born citizens’ decisions that have any conceivable impact on the economy. He even found a couple token “conservatives” to give the impression that this is a reasonable consensus, and then:

“The Obama administration is not relying upon such a sweeping argument, however, and its more limited claim…”

Don’t you see? The administration that hastily took over a sixth of the economy against the popular will is actually more reserved in its claims than a guy who knew Ronald Reagan! Case closed, right? Let’s first take a look at the logic of what they’re claiming:

The mandate does not force people into commerce who would otherwise remain outside it. Instead, it regulates the consumption of health care, an activity in which virtually everyone will engage. Right now, people who go without insurance often shift the costs of their health care to other patients and taxpayers. That situation is different from what happens with any other type of purchase.

Would the government’s defense of the mandate also support a law requiring Americans to buy broccoli or a car? The answer is a simple and emphatic no.”

Sure sounds like health care is unique, and the same logic would not apply to other items. Wait a minute… what if I change a few words in a couple of those sentences: “Instead, it regulates the consumption of food, an activity in which virtually everyone will engage. Right now, people who go without eating healthfully often shift the costs of their health care to other patients and taxpayers.”

Broccoli, anyone?

4. The law is socialist.

Actually, the opposite is true. The principal reason the Affordable Care Act has been called unprecedented is that it declines to follow the New Deal approach of having a monolithic government agency be the single provider of a good or service. Instead, the law adopts a new approach, one conservatives have long supported, of using providers in the private market to deal with social and economic problems.”

Not much I enjoy more than a liberal explaining what it means to be a conservative. I had thought that forcing private companies to provide a good on the government’s terms was something else, but if Walter Dellinger claims that’s conservatism, then I guess I’m sold.

5. The law is an extraordinary intrusion into liberty.

I’ll stop right there. Dellinger fires off past instances (social security/minimum wage/civil rights) where arguments about the logical implications of a particular policy were made, but never came to fruition. But even if Congress never actually regulates every instance of commerce, that doesn’t make confirmation of its ability to do so any less dangerous. Furthermore, it tells us nothing about whether Obamacare is “an extraordinary intrusion of liberty” on its own merits.

Nothing in the health-care law tells doctors what they must say to patients or how those patients are to be treated. It only requires people to either have insurance coverage or pay a modest tax penalty.

Really? Two thousand pages and that’s all it requires? Aside from the ambiguous truth of his above statement, what doctors must say and how patients are treated leaves quite a bit out. Mainly, Obamacare does tell insurance companies what and who must be covered. As the HHS ‘contraception’ mandate controversy has shown, a significant chunk of liberty is up for grabs in that area alone.

Nearly 75 years ago, a Supreme Court dominated by appointees of conservative presidents rejected the challenge to the constitutionality of the Social Security Act. The words of Justice Benjamin Cardozo’s 1937 opinion are relevant today:

“Whether wisdom or unwisdom resides in [the statute in question] it is not for us to say. The answer to such inquiries must come from Congress, not the courts.”

In citing the 1937 court’s supposedly conservative bona fides, Dellinger conveniently leaves out that Cardozo was a liberal appointed by Hoover as a political calculation, and that the justices at that time were under pressure from the threat of FDR’s court packing scheme. Either way, you won’t be surprised to know that Dellinger’s feelings on judicial submission to Congress do not apply to Roe v. Wade.

The logical contortions necessary to defend ObamaCare’s constitutionality are not surprising. After all, the bill is as long as the Bible but with more leaps of faith, and both texts’ authors are describing unlimited power.

2 thoughts on “Obamacare’s mythological Constitutionality

  1. Pingback: Former Obama SG Katyal unaware of Constitutional amendment process «

  2. Pingback: Why are Republicans so darn stupid? «

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