(By Fay Paxton, cross-posted at The Pragmatic Pundit)
If I hear that right-wing narrative about how the federal government and its do-gooder programs are holding America back one more time, like Rick Santorum, I’m liable to puke. “If only government would get out of the way, along with its regulations, its taxes and its social safety net.. “ they sing. They spout platitudes about bygone days, a rose-colored social construct, and the sanctity of the Constitution. The irony is, the very politicians and citizens who can lay claim to middle and upper class status (and fight so ferociously to withhold it from everyone else) can do so only because of a government “New Deal” that lifted their parents or grandparents from the ravages of the Great Depression.
The Tea Party and Justice Broccoli invoke the Tenth Amendment and “states rights”, but, in fact, the Constitution represents the shift of power from the states to the national government. It eradicates states’ sovereignty which had existed under the Articles of Confederation. The goal of the Constitutional Convention was to create a federal system that could address national problems and make the country competitive with Europe. It also sought to protect the new nation from outside forces as well as those within. Unlike the idiots who represent our government today, the Founders who drafted the Constitution, quite sensibly saw danger in disunity.
The Tenth Amendment states simply that:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”
Now think about it, what exactly does that mean? Then consider that the very first Article of the Constitution, the touchstone of our nation, states, “ALL LEGISLATIVE POWERS herein granted shall be vested in a Congress of the United States.” So what then are the powers not delegated to the Congress by the Constitution? The Tenth Amendment is nothing more than a seed of peace, added to appease the State’s Rights advocates, who even today are still fighting the Civil War and that includes Justice Broccoli, et al.
I speak of the Tenth Amendment because the tortured interpretation of its meaning places us where we find ourselves today. It is the basis for the “laboratories of democracy” concept that many refer to regarding healthcare. Never mind that we’ve already had healthcare experiments. In 1994 Kentucky enacted reforms regarding preexisting conditions, but without an individual mandate. Kentucky was forced to repeal the reform when insurance costs rose so steeply insurers pulled out of the market altogether. Initiatives introduced in New York and New Jersey faced similar problems. While, in Massachusetts, where reform was coupled with an individual mandate, the system has worked. How many laboratories do we need?
And finally, there’s that pathetic whine about “loss of liberty”. A decision that Congress has the power to enact the individual mandate speaks only to whether the government has the power to require citizens to participate in health insurance. Nothing more, nothing less. The framers gave Congress the power to address problems of national scope that could not adequately be left to the states. Healthcare is precisely such a problem. One that has been broached by both Democratic and Republican presidents for nearly a century. Clearly, were states up to the task, we would not have this dilemma. The same can be said of the Republicans, who now have ALL the answers, but apparently had none when they occupied the House, Senate and White House from 2001 to 2007. They should change their name to the Reactionaries.
My friend argues that if the government can tell us to buy health insurance, they will soon tell us we must buy an electric car or place solar panels on our homes. An asinine theory, for we have a choice to purchase a car or not, to buy a house or not. Illness, an accident or debilitating disease is not a choice. Besides, the individual mandate is aimed at people who fail to acquire insurance, and then cannot pay the cost of their own health care when they need it. That cost is ultimately borne by the rest of us. The Congressional Budget Office estimated that in 2008 the uninsured shifted $43 billion of health care costs to those of us who are covered.
Have you noticed that those who yell loudest are already insured and are therefore not affected by the new law? Whatever the case, absolutely nothing in the Constitution even remotely guarantees a right to be a free rider and to shift the costs of one’s health care to others.
According to Justice Broccoli, “If every person comes within the Commerce Clause power of Congress to regulate by the simple reason that he will one day engage in commerce, the idea of a limited Government power is at an end.”
Congress plainly can tax for the purpose of providing health insurance. It does so already, through Medicare and Medicaid. Of course, Medicare contributions are a tax, not a purchase. Or is it? Isn’t it a purchase of insurance? Whatever, to my way of thinking, an obligation to pay has the same effect whether we call it a tax, purchase, fee, fine, penalty or contribution. In fact, Medicare is even worse than the Affordable Care Act, because it requires an investment over a lifetime, that God forbid, one might not live long enough to collect. But of course, Medicare forces us to buy health insurance from the government, rather than from private insurers, even though the option is available. In the final analysis, the problem, solution, intent and end result are the same.
The four justices said people who don’t want health insurance are “quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance.”
This ignores the very purpose and idea of insurance. It provides protection against a possible eventuality. Medicare presumes that people will reach age 65 and need medical attention. An employed 22 year-old is not exempt because they refuse to project 43 years into the future. Consequently, in that same vein, the Medicare mandate legislates “inactivity” for 43 years. Would it really be erroneous to suggest that Medicare “purchases” future healthcare coverage? And since the 22 year-old cannot actually benefit from the purchase, can the purchaser be considered “inactive”? Such knit-picking analogies could go on forever.
Justice Broccoli wrote: “Indeed, the main objection many have to the Mandate is that they have no intention of purchasing most or even any of such goods or services and thus no need to buy insurance for those purchases.”
Despite proclamations about Justice Broccoli’s superior intellect, this is far-flung reasoning. People require medical care and in fact die, at every stage of life. The question is not whether one wants it, but whether it is needed. One may not want a vaccination, afterall who actually plans to contract polio, yet it is mandated none the less. Such a statement indicates that he was less worried about the interpretation of the Constitution and the economic viability of the nation than he was about the boundaries of government authority.
The argument that the framers could not possibly have envisioned a congressional power to force purchases is upended by the fact that in 1798, Congress required seamen to buy hospital insurance. Some believed the Justices felt the Merchant Marine law outdated, but when giving his snide dissent to the immigration law, Justice Broccoli had no problem reaching all the way back into the caverns of abolitionists.
More importantly, the Justices initially determined they could hear the case because the mandate did not represent a tax. Only to turn full circle and determine the mandate could only be legitimate because it is a tax. But wait! If the mandate is a tax, how does the court have the right to pass judgment at all before it goes into effect? This is the kind of insidious legal beagle double-speak one should expect to hear at a bond hearing. Instead of hallowed halls of deliberation, the Supreme Court sounds more like “Let’s Make a Deal” with Justice Roberts assuming the role of Monty Hall.
I see absolutely nothing heroic or commendable about the Robert’s decision. The justices ignored precedent, Congress’s right and duty to regulate and secure the economic welfare of the nation, and the Constitution in favor of an ideology that is entrenched in the defunct Articles of Confederation. I do not accept that any of them had serious doubts about the Constitutionality of the minimum coverage provisions of the Affordable Care Act, but were simply determined to reinterpret the limits of the Commerce Clause, undermine the Federal government and who knows, perhaps even this President. So it came down to, you give me the Medicaid that Conservatives mortally despise and I’ll give you the mandate.
People who shudder at the prospect of the nation becoming a “nanny state” should be equally concerned when “nanny judges” tell us what laws we can write.