Most observers seem to think that the government lawyer tasked with defending Obamacare had a bad day yesterday. And I suppose that's true, since it's by definition tough to defend the indefensible. The conversation seemed to turn on the idea of enumerated powers. Everyone has long concluded that Justice Anthony Kennedy is the key vote and this observation seems crucial:
Kennedy: [H]ere the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in a very fundamental way.
This is the classic conservative argument on the matter. If the government can compel you, via an individual mandate, to buy a product or service, it can pretty much compel you to do anything. We've been headed for this moment for a long time, given the numerous ways that the federal government has used the Commerce Clause to regulate and control vast swaths of the overall economy. The indvidual mandate is the really the endgame of the argument; if it is constitutional, the federal government's power is absolute.
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I'm curious. Here in Minnesota we are compelled to buy liability insurance if we drive a vehicle. If the Federal health law mandate is ruled unconstitutional will this also invalidate the Minnesota law?
I'm curious. Here in Minnesota we are compelled to buy liability insurance if we drive a vehicle. If the Federal health law mandate is ruled unconstitutional will this also invalidate the Minnesota law?
No, because you don’t have to own or operate a car. Since the individual mandate involves health care, which is intrinsic to each person, there is no way to avoid it.
Thomas essentially made the same argument in his dissent on Raich v. Gonzales (which dealt with medical marijuana): that if the commerce clause could be construed to prohibit someone from growing and consuming a plant on their own property, it literally gave congress the power to regulate anything.
I imagine Thomas's vote will be consistent on this point, as will those of Breyer and Ginsberg (on the other side), but it wouldn't surprise me to see Scalia and Kennedy find an interesting way to draw a different line, here.
What is really interesting about this case is that if the court finds that compelling you to buy a private product or service is unconstitutional (and I think there is good reason to think that they will and that it is), it leaves open the option of single-payer. After all, if Medicare and Social Security (in which you are compelled to participate with only a few exceptions if you earn income, but are government services) are not prohibited by the Constitution, then I don't see why a government single-payer system would be.
It also makes me wonder what the constitutional implications for privatization of Social Security would be, if participation in the system remained mandatory.
This case could be a short-term victory for conservatives, but a long-term setback on other fronts.
What is really interesting about this case is that if the court finds that compelling you to buy a private product or service is unconstitutional (and I think there is good reason to think that they will and that it is), it leaves open the option of single-payer.
True. But I doubt single-payer is going to get any more popular in the coming years.
what is so hard about a single-line bill that states: "everybody is now qualified for medicare?"
Big victory in this case means that government becomes more limited. Medium victory means that the government is told that further expansion of its powers is unconstitutional. Little victory is that the mandate is struck down, but in such a way that leaves us in an untenable situation, forcing Congress to cobble together some "solution" that sucks almost as much.
I can see the little victory being a setback. The middle victory would still be significant. I'm not too worried about the forced privatization of social security. Wasn't the proposed reform during the Bush years something more along the lines of elective privatization of a certain percentage of your personal "savings"?
As for the big victory... America could use some good news. More limited government, even if (particularly if?) it gores a few conservative sacred cows, would be well worth it. Statist cows need to be gored, whether they be liberal or conservative, because the fundamental cultural conversation needs to change from "compassion" to liberty. Not that there aren't problems in that direction too, but we've got a ways to go before the government is too little involved in our lives.
Statist cows need to be gored, whether they be liberal or conservative, because the fundamental cultural conversation needs to change from "compassion" to liberty.
Yep. The longer you look at the issue, the more clear this is.
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