Map of life expectancy at birth from Global Education Project.

Monday, March 26, 2012

I'm not a constitutional law expert

But I do know something about health care policy. Having consumed a substantial proportion of the universe's supply of bits blogging about the Affordable Care Act and the underlying economic structure and ethical considerations of health care and health insurance markets, I will now state only a couple of points:

Health care and health insurance clearly and entail interstate commerce;
Congress compelled guaranteed issue and community rating in order to regulate the interstate market for health insurance in the public interest;
In order to do the above, the individual mandate to purchase health insurance is necessary. If you don't already understand why, Lawrence Gostin explains it to you, no worse than I already have.

It is my understanding that the great majority of people who are actual constitutional law experts think the act is constitutional. Indeed, in order to rule it unconstitutional the Court would have to find that everything from the EPA to restrictions on what can be sent through the mail is unconstitutional. Not only that, but the ACA is a conservative idea that was originally proposed by the Heritage Foundation and was the Republican's answer to single payer proposal (which, BTW, would be absolutely, no doubt about it, slam dunk constitutionally valid).

The problem, however, is that conservative jurisprudence means "coming to conclusions that conservatives like." As Andrew Koppleman explains here, the conservative majority on the Supreme Court cannot possibly find a principled way to hold the act unconstitutional without blowing up the modern state. But in the light of Bush v. Gore, you know they really, really want to. As Koppleman writes:

Its other option is to avoid those implications by surrounding its holding with the kind of obfuscation that [lawyer for the plaintiffs] Clement offers, so that no one will be able to figure out whether the case’s holding applies to anything beyond its specific facts. This second option, which is the only realistic one, is remarkably result-oriented: like Bush v. Gore, it adopts principles that it has no intention of adopting in any other case, just to reach a result it likes. Because no broader principles are being adopted, there’s nothing at stake beyond the chance to stick a pin in Obama – in a way that is likely to have a devastating effect on the very large number of people with preexisting conditions who were going to get affordable medical insurance as a consequence of the legislation, and who now won’t.

I don't expect honesty or integrity from this gang. Do you?

1 comment:

Daniel said...