My Facebook page is being filled up with impassioned pleas to save healthcare reform. They are of course talking about the arguments in the Supreme Court over the “Affordable Healthcare Act.” I’m not a big fan of the legislation, no surprise there. Funnily enough, I don’t need to know the minutia of the 1000+ page law to draw my conclusion either. The main sticking point to me, and I think the reason it is being argued at the Supreme Court, is the individual mandate. The law says that everyone has to purchase health insurance, in fact it relays on this in order to realize its cost savings that are supposed to come from it.
Let’s forget for a moment that this law is not about healthcare, but health insurance, and let’s also forget for a moment that popular opinion shouldn’t sway the Supreme Court. I am also going to, for the sake of argument, allow that the law actually would reduce health insurance prices and it would actually work out best for everyone. I don’t believe that for a second mind you, but I don’t want to dwell on that here.
Have you wondered why there is so much chatter about this supreme court case? I’m not talking about the political scorekeeping involved, I’m talking about the commerce clause.
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
That little clause has been twisted to the point where it is unrecognizable. It’s meaning seems rather straightforward, but congress, with the Supreme Court’s blessing, has used it in all manner of strange ways. In Ashcroft vs. Raich, the Supreme Court ruled that the Federal Government could outlaw marijuana because of the commerce clause even though in this case the defendant never sold it at all, let alone between states. It was ruled that the defendant could have sold it, therefore the federal government had jurisdiction over it. Judge Clarence Thomas said this in his dissenting opinion:
“If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress’ Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to “appropria[te] state police powers under the guise of regulating commerce.”
So who could blame congress when it passed a law saying that it could force every American to do something? When pressed on what gives them that power, they respond that the commerce clause gives it to them.
This really is the drug war’s chickens coming home to roost. Once the Supreme Court ruled that congress can essentially legislate anything at all because of the commerce clause, all bets were off. If this law gets struck down, they will have established that the Federal Government cannot force you to buy something. That’s hardly a shocking idea and it shows just how nuts the law is as determined by the Supreme Court.
There was a time when lawmakers assumed that prohibiting a substance was unconstitutional. Banning alcohol was a popular cause at one point, but they knew they couldn’t pass laws banning it until they amended the constitution. How quaint. It is now assumed that the federal government can legislate any damn thing it wants to. This law getting struck down will carve out a very narrow limitation on the feds, one that I’m really terrified that we have to spell out so clearly.
Much has been made about the hypothetical broccoli law. The thought experiment goes like this, broccoli is good for you, so can the federal government force people to buy it if not eat it? It’s a silly thing, no one really thinks that, but there are legions of people that think in the abstract that the government should legislate “good” things. You, know, for our own good.
this goes right back to my “Everything is fine as long as the right people are in power” model of politics. Why does no one think about the damage that will ensue as soon as the “wrong” people are in charge? Limiting government power is to protect us from whatever politician you think is evil incarnate. Dick Cheney or Nancy Polesi, it doesn’t matter. No one should be afraid of the changing of the political winds.
This is the real reason why this case is so important. If we can get some sort of semblance of sanity with regards to the commerce clause, it will be a victory. With any luck, it will also force the court to reconsider previous contortions over the clause as well. Remember, the law being “good for us” is not a sufficient reason for the government to employ its force.