Here is the headline in the print version of this New York Times story (which the Times headlines appropriately on-line):
Justice Department Acts Against Protections For People With Pre-existing Conditions
This is as pure an example of journalism deceit and a pernicious variety of fake news as I have encountered. An equivalent headline would be to describe the ACLU petitioning to overturn a federal ban on “hate speech” as “ACLU Acts Against Protections for Blacks, Gays and Muslims.”
The individual mandate was always unconstitutional as a penalty, and the Supreme Court was poised to overturn the Affordable Care Act on that basis, until Justice Roberts hit on the brilliant but perverse argument that even though the Obama administration and Democrats had insisted that the device wasn’t a tax in order to get the thing passed, it really was, so it was legal after all. Congress, however, repealed the “tax,” so now that pretense no longer works. The mandate is unconstitutional…again.
I know the Democratic approach to legislation and public policy is increasingly “the ends justify the means” and “the Constitution is just an archaic piece of paper,” but the fact is and has always been that the document is our nation’s (increasingly vulnerable) bulwark against tyranny, and it is the duty of the Justice Department and the courts to oppose unconstitutional, as in “illegal,” measures, even those that appear to solve difficult problems.
If a provision is unconstitutional, it doesn’t matter what benefits it may have. We cannot have a precedent that holds that the Constitution can be ignored for “good reasons.” No reason is good enough. That kind of thinking is how Japanese-Americans ended up in concentration camps under an iconic Democratic President, approved by a liberal Supreme Court.
The individual mandate, without the cover story that it is a tax, violates the Constitution. That’s all we need to know. The ability of insurance companies to cover pre-existing conditions under the ACA becomes impossible without it? Well, we’re just going to have to come up with a solution that isn’t unconstitutional, won’t we?
Deceiving the public into believing that upholding core constitutional principles is excessive and sinister when it blocks otherwise desirable policy initiatives is playing with fire. It makes the public civically ignorant. It places false emphasis on results rather than the rule of law.
It paves the road to totalitarianism.