I will not publish interim miscellany posts (June 30-July 2), although hopefully I'll finally finish the June 29 post (which will not be backdated) and resume my normal miscellany schedule today. As time permits, I may write additional one-off posts as I review news developments over the weekend.
One of the things I reflected on overnight was a post-ObamaCare ruling post in The Week on allegedly over-the-top reactions by Republicans:
- 9/11 comparison (Mike Pence)
- challenging Obama's patriotism (Geller; Palin)
- exaggerated importance of the decision in historic/apocalyptic terms
- state of denial of the ruling's Constitutionality/legitimacy (Rand Paul)
- personal attacks on the "traitor" Chief Justice John Roberts
First, let me address where Rand Paul is coming from (and I'm sympathetic to his point of view): there is no doubt that Justice Roberts' ruling--to accept the tax authority argument--is dubious, at best. Keep in mind that two of the socially liberal justices at the hearing (which I quoted in an earlier post) scoffed at the classification of the penalty as a tax; the Dems explicitly rejected the use of the term "tax" in the legislation itself. It's clear that the Dems and the liberal wing of the Court wanted to validate the mandate in an unprecedented manner on the Commerce Clause. It was primarily the Administration's attempt to hedge its bet given the historic deference of the Supreme Court to the Congress' tax authority to pose it as a tax issue; John Roberts accepted their argument in a way that the 4 dissenting justices didn't. Indeed, what distinguishes health insurance mandate from any other type of mandate? Is Justice Roberts saying you can make any purchase mandate constitutional simply by adding a penalty provision to it? Hasn't he simply shifted the problem of restricting Congress' power from abuse of the Commerce Clause to abuse of the taxing authority? Penalties are really designed to punish people, not to raise money (fines are only one form of penalty). (There are some exceptions, e.g., Selma's notorious speed traps and certain alcohol checkpoints.)
So I think Roberts' decision is dubious from a constitutional standpoint: it raises more questions than answers. The magazine's point that any SCOTUS decision is, by definition, constitutional is flippant and doesn't address Paul's substantive point. After all, SCOTUS has occasionally reversed itself: how can contradictory decisions both be constitutional? Rand Paul is pointing out that the US Constitution put limits on the federal government's power under the principle of federalism. Health regulation has been traditionally implemented by the states, not the federal government. ObamaCare, in fact, did intend to control states, e.g., by unilaterally raising Medicaid eligibility standards (which was struck down).
Second, as to the significance of the decision, let's point out that this legislation was not a progressive-favored single payer system and did not provide government competition (e.g., the "public option"). In fact, conservatives have themselves raised mandates, e.g., in challenging Clinton's failed health care initiative. Let us recall WHY the mandate was raised: progressives want to impose guaranteed issue conditions which would require others to subsidize the new policyholder from day 1. Without healthier risks in the insurance pool to offset money-losing policyholders, insurers do not have a sustainable business model. What we need is for insurance to be insurance: if government wants to subsidize the risks of high-risk health care consumers, it should be done fairly, e.g., in a government program (like Medicaid) or some sort of assigned risk pool system with subsidies raised broadly (e.g., taxing health transactions).
I argue that the bigger issue is economic liberty (e.g., self-insurance, cumbersome health care sector regulations, etc.) and violation of free market principles across the board, from subsidizing employer-secured group health care insurance to price-fixing in Medicare and Medicaid. Of course, ObamaCare will explode in costs, well beyond what I've regularly termed kaleidoscope accounting, but Medicare itself has tens of trillions in unfunded liabilities. I would prefer that my fellow conservatives criticize federal involvement in the health care sector on a more consistent, comprehensive basis.
Finally, on Chief Justice Roberts himself. I'm personally disappointed in his decision. Not that the totally partisan, corrupt political process underlying the passage of ObamaCare, the legislation's enduring unpopularity, or the significance of the legislation on roughly 17% of the economy are salient issues from the perspective of SCOTUS, but Justice Roberts bought into a post hoc, blatantly opportunistic rationale (of a penalty as a government funding source) for upholding astonishingly bad public policy. All he did was displace the limits issue from the Commerce clause to tax authority: has he simply provided a workaround precedent to the Commerce clause? No, Chief Justice Roberts; with all due respect, this moment is not a your profile in courage moment given conservatives' outrage at the decision. I wish that you had done the right thing and killed this monstrous law, a blow against economic liberty at its core. I understand that you did not endorse the policy, but it is very difficult to disentangle dysfunctional progressive policies once in place: it's like a bureaucratic cancer. I do not evaluate a justice based on a single bad ruling but on his contribution over the long run.
