Map of life expectancy at birth from Global Education Project.

Thursday, January 05, 2012

Hey Indeedy

Lawyer Einer Elhauge, in NEJM, explains why the individual mandate in the Affordable Care Act is indeed constitutional. Go ahead and read it but in case you're too lazy, he throws the kitchen sink at this question.

Most broadly, once you engage in commerce, then Congress can regulate you. And it is not the case that Congress can only regulate commercial activity -- Congress can regulate any activity that affects commerce, as it did when it limit wheat growing for self-consumption back in the 30s. (Yep, it did that, and the Supreme Court said it had that power in 1942 and re-affirmed it in 2005.) In 1790, Congress required ship owners to provide medical insurance to sailors; and in 1798, it required sailors to buy it for themselves. (Really!) In 1792, Congress required every able bodied citizen to buy a firearm. Furthermore, the distinction between the mandate -- buy insurance or pay a tax penalty -- and an actual tax -- e.g. the Medicare payroll tax -- is purely semantic. It amounts to the same thing. And he goes on and on.

This is pretty much what every dispassionate observer says -- there is no constitutional problem with the Affordable Care Act. But as we have already seen, lower courts have been divided on the question and guess what? It's Republican judges, exclusively, who have ruled against the Act. So what do you think the highly partisan, highly politicized Supreme Court majority will do? Uphold the Constitution and more than two centuries of precedent, or make an indefensible and deeply harmful decision in order to serve its political objectives?

I'm not real hopeful about this. By the way, I don't like the kludgy individual mandate, as you well know. It is not the best public policy, but we know why it happened -- to get the insurance companies on board with the legislation, because it's corporate lobbyists who run Congress. However, Congress has the constitutional power to make bad law.

There would be no constitutional problem whatsoever with universal, comprehensive single payer national health care. We know that because Medicare has already been upheld. Just extend it to everyone. We're done.


kathy a. said...

i'm feeling fairly optimistic about the law being upheld, even in this court. only one lower court found only one part of the law unconstitutional -- the individual mandate. as your link points out, there is solid precedent for this kind of regulation.

Cervantes said...

Yabbut do you really trust Scalia to uphold the Constitution? Remember who became president in 2001?

kathy a. said...

i know, i know! i don't trust scalia at all. but that case was different from anything that had gone before. i believe the court made a hasty decision because it was horrified at the specter of a constitutional crisis, should the presidency be left vacant.

institutionally, the court pays great attention to precedent, and big breaks with precedent happen rarely, and normally only after evolution bubbles up via public policy changes over time and in lower courts.

i could be wrong, you know. this is not my favorite court. but the case for gutting the law looks pretty weak to me.

Daniel said...

" i believe the court made a hasty decision because it was horrified at the specter of a constitutional crisis, should the presidency be left vacant.:

Maybe 5 felt that way, but 4 felt the decision was outrageous.

I am in no way a legal scholar, but it appears to me that politics trumps legal precedent in this Supreme Court.