Listening to the oral arguments on the Supreme Court during the last three days is a reminder of why it is, in many respects, the intellectual crown jewel for conservatives, and why it’s vital that those appointed to the high court aren’t simply reliable votes but are capable of making compelling arguments.
To hear Justices Scalia, Alito, Roberts, and even Kennedy slice and dice Solicitor General Donald Verrilli was sheer delight, as they exposed one bad argument and one flawed premise after another. Among other things, they pressed Verrilli on what the limiting principle was under the Commerce Clause. “Can you create commerce in order to regulate it?” Justice Kennedy asked. Justice Alito brought up the market for burial services and asked if the government could mandate funeral insurance (the argument being that because we all die eventually, why shouldn’t we transfer the costs of our deaths to the rest of society). When Justice Scalia asked Verrilli to defend the individual mandate provision of ObamaCare, he wondered why the federal government couldn’t also make citizens buy vegetables. “Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli,” Scalia asked. Justice Roberts asked if the federal government can make you buy a cell phone.
The solicitor general wasn’t able to offer a principled reason why, if the Patient Protection and Affordable Care Act is ruled as constitutional, the federal government won’t have the power to regulate virtually every area of our lives. Perhaps because there is none. The belief of the founders — that the federal government has limited and enumerated powers — would be dealt a crushing blow. That is why this case is so important and has garnered so much intense interest. The stakes could hardly be higher.
I have no idea what the final vote will be and whether or not the Patient Protection and Affordable Care Act will live or die. But the last three days have provided us with a blessed reprieve from the silliness that often characterizes political campaigns. What we’ve been able to witness is a serious, substantive, and at times even an elevated debate about the Constitution, self-government, and American first principles. Conservatives had their most able advocates articulating their case and their cause. It was an intellectual treat. And it was a rout.
Surely it was a "rout." We may also hope it proves a route to a more sensible notion of government.
They’re the obvious questions to pose to an advocate of a poorly thought out and partisan law. n nThere’s nothing subtle about the broccoli or cell phone questions. n nBut I’m wondering what these men would have replied to a response to their superficial queries with an apt and relevant counter query: When will lack of broccoli or cell phone ever necessitate an EMTALA intervention? n nIf ObamaCare is deemed unconstitutional, the politics of it change. How drastically will depend on what is perceived to have been lost. People will become more aware of its provisions once it’s defeated. n nBut the limits of the Constitution to help constitute necessities of life is clear. Its acceptance of slavery is proof of that. Humility, as Hayek noted, must be the burden carried by some part of the electorate.
Well, let's see. In order to address your questions, one has to first put on the Leftist mindset that mandates need not have any connection *whatsoever* with any, *actual* necessity. In fact, many of the mandates we live with today are the result of manufatured or non-existent necessities. n nSo, you ask when will lack of broccoli necessitate an EMTALA interevention? The Leftist answer is (if they are honest), "Whenever I say so, dammit!" But the more subtle answer they will give is, "Ah, you see, the scientific consensus is that State and Local governments will spend more than $400 billion (over the next 100 years) due to the crisis in Vitamin D deficiencies in the general population and Science has, furthermore, determined that broccoli is the single best source of Vitamin D which, therefore, requires Federal intervention to mandate each family to either pay a taxish-penalty-ish-fine-thingy which will be deducted from their tax refund each year or purchase broccoli from Federally-approved stores (owned, of course, by wealthy Democrat donors) and attach proof of purchase to their tax returns." n nNow that wasn't too hard, was it? n nAs for the politics of throwing out ObamaCare, the vast majority of benefits scheduled under do not take effect until 2014, so there will be very, very few benefits that the electorate in 2012 will miss. Not that the Left won't try to stir people up with stories of all the goodies they are going to miss out on.
No need for "scientific answer" when the simple question (probably posed to Reagan) would be: n nIf a pedestrian is struck by a vehicle and he's taken to the hospital and he has no means to pay may the hospital deny to treat? n nI'll leave it to you and the Right to explain why EMTALA absent is a better idea than EMTALA present. n nOnce the legislation is defeated, it's going to be discussed. It won't matter that the benefits had no time to accrue, that'll just be icing. n nPO and his Admin can't turn this into a plus but they can turn it into a call to arms which could very much help him in upcoming election. It won't help him if he's going to ask his followers to "punish their enemies." It will help him, if, like Carville he offers his troops and the middle watching the 5-4 incentive: Go see the Crowned Jewels for affordable coverage.
Scalia is billed as such an intellect, but he disappoints. n nRoberts, on the other hand, is impressive. His strikes/balls comment took on some depth for me. n nI like him, a lot. n nBut the partisanship of the Court can't be denied. I don't have much confidence in it. n n
ah, I don't agree. Scalia may not be elegant but he has a way of cutting thru the cr*p and getting to the heart of the matter. I remember him when my college's law school was defending affirmative action in 2003. Scalia said "if you aren't getting minority candidates because your standards are too high, why don't you just lower your standards?" the Michigan people all sputtered "what? lower our standards! we can't do tha—oh wait–" and all realized that that was precisely the point. n nI've loved him ever since.
I'm wondering how Obama imagines he's got any pull with the SCOTUS, isn't he the president who, in his 2010 State of the Union address, castigated this very same court (minus his shill, Sotomayor) for their ruling on corporate money in elections? Surely this august body doesn't hold any grudges, but they must be aware of his contempt for them … and now he comes begging for favors. n nObama's ineptitude is surely historic, but then it appears that such a quality is often associated with the self-righteous.
The claim that health care is a "unique" market was always bogus. Health care isn't even life’s most necessary support: It comes in fourth after food, clothing and shelter. If you're dying of starvation or exposure, free prostate exams or contraception aren't likely to be of much help. n nOn the other hand, it might be fun to apply the logic of Obamacare to other social problems. For a start we could impose a financial penalty on the homeless. After all, their failure to house themselves is not only anti-social but extremely costly—almost $5 billion per year from the federal government alone!
Don't laugh. n nI've heard self-described Marxists say that wealthy Americans have too much already, and each wealthy American should be FORCED to shelter a homeless person in the guest bedroom in his house. n nSounds like a perfect analogy to the Commerce Clause for the ObamaCare mandate. n
The whole controversy could have been avoided and much time and money saved if the Administration had simply laid its true, socialized medicine cards on the table at the outset. The Democratic-controlled congress of 2009-2011 could have extended Medicaid to all Americans and instituted a payroll tax to pay for it. There would have been no mandates and, therefore, no constitutional objections. n nOf course there would have been titanic prudential objections, among them the awful and, over time, ever-increasing amount of taxes necessary to pay for a health-care system financed and, let's face it, run entirely by the government. Medicare and Medicaid are budgetary and administrative nightmares now, with less than 35% of the population to contend with. Throw in the rest of the country and the prospects are grim beyond description. n nThe Democrats knew all of that, Obama first and foremost, which is why they elected to finesse the hand by offering a pseudo-private system built on the bedrock of the individual mandate, absent which no work-around is possible, but which, as we are witnessing, also comes with what will prove to be insuperable objections on constitutional grounds. n nSumming up, if Obama and the Dems had simply announced in May, 2009, that they were proposing socialized medicine, the whole benighted scheme would have collapsed THEN AND THERE.
Another interesting way to look at the current ObamaCare argument is to see it as the logical (conclusion?) of the entire Leftist/Progressive social movement which re-interpreted the Constitution to allow for this very type of Federal activism. So when the Solicitor General on Monday stated that prior Supreme Courts had not had any problem upholding Federal action under the Commerce Clause (citing Wickard v. Filmore, for instance), he had a point. Decade after decade, the Supreme Court has yielded significant chunks of ground to Congress and the President that fundamentally altered the relationship between the individual and the Federal government. Will the Supreme Court, in this ObamaCare decision, finally say, "Enough" ? Will the Court possibly throw out or throw into question any of the prior cases that expanded the Commerce Clause powers so exponentially?
EMTALA is a mandate and individual, if you’re the doctor whose investment, skill, talent and time have been coerced to serve. n n
It's not a canard. It's a mandate. One that is humane. That's the reason no one is making the case to end it. n nConservatives don't have the power to make health care affordable. n nIn the late 80s I carried my own policy. It was 20% of my monthly rent with an 80/20 split following deductible. n n$20/month for catastrophic coverage? Make it so. n nNo one will be laughing any harder when current market rates are what they are. When my shoe repairman's health care is just a little shy of his mortgage payment.
No one is disagreeing with the mandate to provide Emergency Room services, so let's move past that shall we? n nThis also is not about "conservatives having the power to make health care affordable." n nWhat we are talking about is ditching the current model of insurance-based health care that feeds on a system of artificial scarcity in providers and regulations that insulate the industry from the kind of competition that has provided amazing services at very affordable prices in other service sectors of the economy. n nThe reason a catastrophic policy could be so low-cost (if it were allowed to be sold freely nationwide) is the same reason that a $500,000 life insurance policy can be so cheap if you buy it when you are healthy and relatively young. That is a proper sphere for insurance. Paying for a routine physical or eye exam or cancer screenings, however, is not suitable for insurance, just like it isn't suitable to buy a $400/month car insurance policy to pay for oil changes and tune ups. The health industry should look alot more like the auto repair industry where there is relative freedom for entrepreneurs to compete for your health care dollars. n nOne thing we know for sure. The Left's approach at centralized, socialized medicine has not worked. Time to at least try a market oriented approach (something we have yet to see here in the U.S.).
Yes, I know non one is talking about EMTALA repeal. If you don't bring it up again, I won't either. n nGeorge Will had a piece in last week's Post on legal strategy (courtesy of Cato attorneys) to dismantle ObamaCare: illegality of forced contract. Besides the obvious which I don't think needs to be rehashed, is the unacceptable fact that there is no appeal possible when State (or private monopoly) has made contract and snare synonymous. n nYou first shy away from and then admit that affordability is the goal. n nAs far back as 1986, HC was affordable to those who valued and exercised frugality. A greater number of medical providers (small town hospitals) and about the same number of insurers. What was different was that the lower and middle, middle class had skin and bone in the game: deductible, plus 20% share up to certain expenditure by insurer, and the bone of high employment. n nIntroducing skin and bone back into the game without causing dislocation and harm is what the opening talk should be about. If it's not, there's no reason, IMO, to trust the messenger.