Commentary Magazine


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Holder and Sebelius, Looking Very Weak

Eric Holder and Kathleen Sebelius’s Washington Post op-ed responding to yesterday’s federal court ruling on ObamaCare is arresting. Neither its style nor its force is remarkable. Rather, it is arresting in its refusal to call the decision wrong in accordance with the law. Here’s how Holder and Sebelius address yesterday’s judgment: “Opponents claim the individual responsibility provision is unlawful because it ‘regulates inactivity.’ But none of us is a bystander when it comes to health care. All of us need health care eventually.”

This is actually false. Most adults choose to seek health care eventually.  Some of us — and we all know such people — resist health care in every single circumstance. Others — a very lucky minority — are not opposed to seeking health care as a matter of personal policy but never find themselves sick enough to enlist a medical professional. All this is to say Holder and Sebelius brush rather breezily over the sticky question of what constitutes a “need,” and it is a contention about universal need on which they claim the constitutional soundness of ObamaCare. Weak stuff.

Never do they assert that it is lawful to regulate inactivity. Nor do they demonstrate that not purchasing insurance is not inactivity. They treat the issue as some sort of communally understood given, and blur the legal question out of existence. The rest of the op-ed is devoted to the economics of insurance and the mentioning of people who are ill. Both of those are of supreme importance to health-care policy as a whole. But neither has much to do with yesterday’s ruling. So the judge was wrong simply because “none of us is a bystander when it comes to health care” and because people are sick in America. That’s not legal, and if it’s the best they can do, they’re in trouble.