Nice image. Unfortunately, the open book is "Catch 22"
“Some prominent academics have argued that the individual mandate is a clearly constitutional exercise of the federal government’s taxing power. Some of these same academics have argued that opponents of the individual mandate’s constitutionality are well outside the legal mainstream. Yet as of today, there has not been a single federal court — indeed, perhaps not even a single federal judge — who has accepted the taxing power argument. Not a one. And yet a half-dozen federal judges have found the mandate to be unconstitutional. So which arguments are outside of the mainstream again?”
Thus did Jonathan Adler, Case Western law professor and Director of the Center for Business Law and Regulation, chide the arrogant supporters of the health care reform act who dismissed as wackos and radicals critics who were alarmed at its intrusions onto personal freedom. The 11th Circuit Court of Appeals’ rejection of the individual mandate, the provision requiring all adult citizens to buy private health insurance, is the most striking proof yet of the arrogant, unethical, dishonest, corrupt and incompetent manner in which the Democratic majority passed its version of health care reform.
Imagine—while the nation was facing massive unemployment and struggling through a recession, Congress’s top priority was passing a complicated and expensive mega-bill that did not address any of those concerns (ignore Nancy Pelosi’s typically dishonest, “This is a jobs bill!”) and did not even deal with the real crisis in America’s health care—that its expenses are out of control. President Obama and the Democratic leadership allowed this to dominate political discourse and the national agenda for more that a year. After cobbling together a bill so complex 1) that almost no one who voted for it would or could read it and 2) that it has been revealing hidden problems, mistakes, traps and anomalies in it ever since, the bill’s architects made the financial viability of the main improvement the law was supposed to offer—eliminating prior-condition restrictions on health insurance—entirely dependent upon a provision that would strike any second year law student (or any well-educated college student) as dubious. The United States, for the first time, was ordering U.S. citizens to purchase a product, with penalties.
It is a mark of how immune to any hint of limitations on government power our elected leaders have become that this struck nobody pushing the legislation, not even our Constitutional scholar President, as a problem. I immediately wondered, “Hmmm, can they do that?” —but I only got a C+ in Constitutional Law. What do I know? The Tea Party, which was as much spawned by the health care debacle as anything else, were more definite, since most didn’t have the handicap of a law degree: “You can’t do that!” was their cry. And the mainstream media, which really understands very little about the Constitution but knows where its loyalties are, ridiculed them. The legal establishment, which is only slightly less slanted leftward, generally shrugged off suggestions that the individual mandate was a thin reed on which to build an overhaul of one-sixth of the health care system. It was dead wrong, and its was wrong because academia is biased. Congress was also dead wrong, and was wrong because it is arrogant and incompetent.
And dishonest. The requirement to purchase insurance could have been framed as a tax, but Democrats and the President were too cowardly to suggest a tax to a tax-averse public, so they framed it as a mandate, an order: “You must buy health insurance, or else,” just like “You must eat out at a heart-friendly restaurant four times a week” or “You must buy a fuel-efficient, gray or light-blue, environment-friendly American-made car every four years.” (And a disturbing number of your neighbors would have no problem with those, either.) After denying that the penalty for not doing this was a tax for the entire extent of the health care debate, the Democrats went into every court where the mandate was challenged and argued that it was a tax.They were, as Prof. Adler notes, not successful. It was the height of duplicity.
The long 11th Circuit opinion boils down, in essence, to this passage:
“…the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.
“Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.”
I think the mandate will be overturned by the Supreme Court, and the health care reform provisions will not work without it. So all that time was wasted. An opportunity to achieve genuine health care cost control reforms was lost. It was even worse than that, however.
The horrible process jacked partisanship up to new and deadly levels. The Tea Party was given a solid and rational reason to fear, and fight against, increasing government intrusion in our lives, making the movement more extreme. In a piece of legislation that had to show our elected leaders at their best and justify our trust in them to solve big problems, they lied, they bribed, they maneuvered, they added a huge new entitlement while the national debt was heading skyward, and they didn’t even make sure that it was constitutional, because they were so astoundingly arrogant. They thought they could do anything they wanted to, and thus pushed that false principle to unprecedented lengths in the law, confident that those pointing and protesting would be marginalized and shouted down by the liberal alliance of the elites and the press.
But the system Mr. Madison and his friends established still works, despite so many indications to the contrary. The decision on Friday wasn’t a partisan one: part of the majority was a justice appointed by President Clinton; the dissenting judge, a Republican. Like the existence of the Tea Party, like the debt crisis, like the housing melt-down, like the election of a woefully unprepared Chief Executive and the looming collapse of his misguided centerpiece achievement, this fiasco is the result of untrustworthy elected officials doing their jobs dishonestly and badly, and too many biased institutions, including academia and the media, being unwilling to tell them so.
Ethics Alarms 
I think if the Democrats had had the balls to offer the public option supported by a new tax, they wouldn’t be facing this constitutional challenge. But that would make their corporate masters lose profits.
Right; that’s all a country needs that is allergic to tax and is spending 1,5 million more than it brings in every year—a huge, new unfunded government entitlement. This is known as a “flat learning curve.”
I don’t see this as an ethical issue. I believe THE ethical issue around health care is just this: do Americans want to be a society that provides its political leaders and most everybody else with health care, but leaves fifty million—one of every six Americans—uninsured, with additional millions worried sick that they’ll lose their insurance?
Obama campaigned heavily on the health care issue and got elected. His, and the Democrats strategy and tactics are open to criticism, maybe even on Constitutional grounds, but not on ethical ones. The unethical ones, it seems to me, are the people who, because they have satisfactory health care, oppose compromising it to extend it to those who don’t have any and can’t get any.:
Sir, I disagree. Ethics is involved at all levels, including the ends and the means. To propose that the noble goal of universal health care is the only thing that matters is to see the proverbial forrest and completely miss the trees.
Bob: You don’t see competence as an ethical issue? It isn’t enough to have good intentions, though this seems to be the sole rationale of those who continue to regard the President as anything but an embarrassment. It is unethical to take on a major issue problem and do so stupidly, dishonestly, incompetently, deceptively, and ineffectively—and that’s what the Democrats did. I’ll grant them good intentions, and so what?
Competence and diligence were absent from the process. If that wasn’t true, there wouldn’t be a constitutional challenge. Your defense amounts to saying that the ends justify the means…EVEN IF THE ENDS ARE CRAP! Really?
I don’t buy the incompetence argument. Politics is often called the art of the possible. Obama and his congressional sometimes-allies arguably did what was possible. And surely you agree that the Republicans would have challenged the Constitutionality of whatever health reform passed.
Sure—but you can’t say that the only possible solution was a law that was actually unconstitutional! 1) That’s just not so and 2) Congress has an obligation, ethical and legal, NOT to pass unconstitutional legislation. If the best the Congress and the President could do was a solution prevented by the law of the land, what would you call it? I think that’s incompetence, cut and dried.
Naah–They didn’t intend the legislation to be unconstitutional. Some lawyers thought it was and some thought it wasn’t. Even now, some bush-appointed appelate judges say it’s ok, some Clinton appointees say it’s not.
We’ll know what’s constitutional when five of the current Supremes say so. Not before.
I don’t think you play brinksmanship with the Constitution, not when major legislation is involved, and especially when the motivation is to avoid calling a tax a tax.
It’s unconstitutional. The only issue is whether the Court says that thinks similar have been allowed for so long, even though they were constitutional, that it’s too late to stop now. I don’t see a Roberts Court buying that.
I’ll bet you dinner, here or there, whichever one of us gets in the other’s territory. The mandatory is toast. I can taste the steak now.
While I’d welcome the chance to buy you a steak dinner, it’s no bet. The Roberts court will rule it unconstitutional. five to four.
here’s a bet for you: USC to finish higher in their division than the Redskins in theirs.
1) That would be my guess. It might even be 6-3.
2) No bet. The Redskins are cursed.
The curse of Daniel Snyder. Hope it ends faster than the curse of the Bambino.
Thanks, Bob. I agree with everything you said. Do you really think Kennedy will swing to the right on this one? And have you heard the theory that, if the Affordable Care Act is ruled unconstitutional, it will cause such an escalation in costs and will force us into a single payer plan due to public outcry? I kind of like that one.
I do know that I have a daughter, laid off from her teaching job and now on COBRA, with a preexisting condition. At the end of 2012, if she does not have a new teaching job (or some other job with a group plan that cannot reject her), she will be forced into a high risk pool which is even more expensive that COBRA or, more likely, no insurance at all. Her father and I are grateful every day for the provisions in the law that forbid insurance companies to turn people away, but are also aware that the plan may no longer be there for her when she needs it. It is nice when you have a comprehensive plan of your own to pontificate about the free market and “ends” and “means,” but when you’re facing financial and physical devastation, it gives you a whole new perspective about caring for each other and being willing to chip in so that everyone can have decent care.
Jan, the chances of a public option being passed, especially now, with the huge debt, is less than nil.
And this is another reason why the spending is irresponsible–it eliminates options for legitimate, important expenditures. Not that I think national health acre insurance is legitimate or a responsible option.
The mandate will be found unconstitutional because it is. And yes, i have a hard time believing a libertarian like Kennedy will rationalize an expansion of government power that could have us being ordered to buy GM cars or Michelle’s favorite tofu in its next slippery slope iteration.
By the way, Jan your last paragraph is called “a conflict of interest,” or “principles be damned, it works for me.”
Very popular these days.
Ah, the old “slippery slope” argument. I don’t want Michelle’s tofu forced on me so I’d better vote for the other Michele.
I don’t think it’s right to label Jan conflicted. her interest is clear. Maybe her personal situation gives her more empathy and clarity.
And it sucks that in the wealthy USA so many people are involuntarily uninsured. But I repeat myself, so I’ll go have some tofu.
The thing is, constitutional law is one area where the slippery slope is especially deadly. Precedent and stare decisus can take away our freedoms faster than you can say “Citizens United.” SCOTUS rules, correctly, that a state has no business telling married couples that they can’t use birth control, and next thing we know, viable fetuses can be legally beheaded if the mother “chooses.”
Explain to me how a nation 14 trillion in debt is wealthy. I’d think Jan could empathize with how unfortunate it is when a country can’t afford to do essential jobs, like protect itself, maintain its roads, and educate its children.
Nope, I’m enjoying my Michelle tofu and then going to sleep.
I am glad to see that there are still some judges with integrity left. After the health care bill was passed by a process that didn’t much resemble what I learned on “School House Rock” I was wondering what would be next, a bill to force me to buy Hunt’s ketchup instead of Heinz. I guess that wouldn’t pass today anyway because Republicans control the House.
No, they’ll just pass a bill that forces families whose loved ones are on life support with no chance of ever waking up—like my Mom this year—or who have no brain function remaining, like Teri Shiavo, to keep them “alive” indefinitely. Republicans don’t object to infringing on freedoms, just when it is for an objective they don’t happen to agree with.
Rick Perry has me pissed off this morning. Sorry.