The implicit argument for the legality of Obamacare is that the
country hasn’t taken the Constitution seriously in decades. So why
start now? Since all branches of the federal government have
colluded in ignoring and violating the Constitution for this or
that “good” cause over the years, why insist on returning to it?
Nancy Pelosi relied on this implicit argument when she sputtered
“Are you serious?” to a question last year about Obamacare’s
constitutionality. Her scoff meant that the matter isn’t even
debatable anymore; America’s de facto new Constitution — the
“living” one that resides in the wills of modern pols and judges —
permits Congress to do anything it pleases in the name of the
“general welfare.”
Attorney General Eric Holder and Health and Human Services
Secretary Kathleen Sebelius sound a similar note when they
write that U.S. District Judge Henry Hudson’s ruling is an
antiquated quibble: “We saw similar challenges to laws that created
Social Security and established new civil rights protections. Those
challenges ultimately failed, and so will this one.”
Holder and Sebelius find it annoying that the states would
“dig” up an “old” theory like the Commerce Clause to oppose such
obviously altruistic legislation. Holder and Sebelius sniff that
the states’ reading of the Commerce Clause was rejected “80 years
ago.”
That Congress can establish whatever tax it pleases in the
name of the “general welfare” or ludicrously stretch the Commerce
Clause to mean that nonactivity counts as regulatable “interstate
commerce” was rejected over 220 years ago. Forcing every person in
every state into purchasing health insurance was not one of the
enumerated powers of Congress. But instead of just admitting that,
Holder has to fake up a legal case for baldly unconstitutional
action and hope that the “80 years” old anti-constitution of
judicial activism holds. And it probably will, since the swing vote
on the Supreme Court, Anthony Kennedy, is capable of reading the
Constitution with extreme creativity.
Mere existence may count as “interstate commerce” to a
justice who has elsewhere found “a right to define one’s own
concept of existence” within the Constitution.
Holder and Sebelius resort to the Democrats’ language of
Big Brother when referring to the unconstitutional mandate at the
center of Obamacare as the “individual responsibility provision”
and talk tough about all the freeloading at emergency rooms
permitted by the current system. (“The costs of this uncompensated
care — $43 billion in 2008 — are then passed on to doctors,
hospitals, small businesses and Americans who have
insurance.”)
The latter is an odd stance for proponents of subsidized
care to take. What does it matter to them if people are currently
receiving free care at emergency rooms? Aren’t they in favor of
free care? The costs of Obamacare will make those costs look minor,
and it is not as if those who are currently receiving free care
will suddenly be able to fulfill the “individual responsibility
provision.”
What that Orwellian phrase means is not that individuals
will take responsibility for their own costs but that they will
carry costs for others. The healthy have to be herded into coverage
that they don’t need in order to get money into the system for all.
Holder and Sebelius use the analogy of mandatory car insurance to
justify this provison: “Imagine what would happen if everyone
waited to buy car insurance until after they got in an accident.
Premiums would skyrocket, coverage would be unaffordable, and
responsible drivers would be priced out of the market.” But for the
analogy to work, the mandatory car insurance would have to extend
to nondrivers. Are nondrivers engaging in “interstate commerce” by
not driving? Should they be forced into car insurance that covers
everything from crashes to oil changes so that insurance premiums
for drivers can go down? That’s what Obamacare is like.
Holder and Sebelius make a few pro forma remarks about the
legality of Obamacare but basically adopt the tone of saying that
the legislation is so salutary that any constitutional challenge to
it should be automatically dismissed. Don’t take away the funding
mechanism of Obamacare, they essentially plead, implying, as
proponents of judicial activism always do, that even if the means
are unconstitutional the “good” result from Congressional
legislation should stand.
