During the health care fight, much was
made by folks like me about the issue of the government arrogating to
itself the power to make you do something, in this case, buy health
insurance, under the cloak of the Commerce Clause. The people who put
forth the idea of this imaginary authority can, I suppose, be excused to
some degree for suggesting something so unimaginably stupid since the
The Supreme Court ruled something only slightly less - or maybe more -
stupid in Wickard v. Filburn.
Regardless,
there is no arguing that the idea of the Commerce Clause giving the
United States government the authority to force people to buy something is the kind of thing that only a mental
vegetable would endorse. Or a liberal member of Congress. But I repeat
myself . . .
As you may have
noticed, in the process of keeping airplanes from returning to Earth in a
pile of mangled, flaming debris and barbequed DNA, they at no time have
ever suggested that they had the power to make you buy a plane ticket - or a plane - in an attempt to regulate the financial aspect of the airline industry in such a way as to pay for the potential damages as a result of falling debris from a mid-air disaster, such as occurred in Lockerbie, Scotland.
Imagine that.
This
is where we get into what I like to call, with proper credit to Mr.
Zappa, the crux of the biscuit: just exactly what can Congress do in
the face of deliberate economic inactivity by a citizen while
maintaining its obedience to the Constitution?
I believe Chief Justice Roberts has answered that question quite well.
Let's look
at what the final result actually is.
First, the individual mandate is absolutely, unequivocally dead. The Supreme Court ruled in crystal clear language that the United States government cannot require anyone to purchase health insurance.
From the Majority Opinion regarding NFIB v. Sibelius -
"The
Constitution grants Congress the power to “regulate Commerce.” The power to regulate commerce presupposes
the existence of commercial activity to be regulated. If the power to
“regulate” something included the power to create it, many of the
provisions in the Constitution would be superfluous. For example, the
Constitution gives Congress the power to “coin Money,” in addition to
the power to “regulate the Value thereof.” And it gives
Congress the power to “raise and support Armies” and to “provide and
maintain a Navy,” in addition to the power to “make Rules for the
Government and Regulation of the land and naval Forces.” If the power to regulate the armed forces or the value of money
included the power to bring the subject of the regulation into
existence, the specific grant of such powers would have been
unnecessary. The language of the Constitution reflects the natural
understanding that the power to regulate assumes there is already
something to be regulated . . .
"The
individual mandate, however, does not regulate existing commercial
activity. It instead compels individuals to become active in commerce by
purchasing a product, on the ground that their failure to do so affects
interstate commerce. Construing the Commerce Clause to permit Congress
to regulate individuals precisely because they are doing nothing would
open a new and potentially vast domain to congressional authority. Every
day individuals do not do an infinite number of things. In some cases
they decide not to do something; in others they simply fail to do it.
Allowing Congress to justify federal regulation by pointing to the
effect of inaction on commerce would bring countless decisions an
individual could potentially make within the scope of federal
regulation, and—under the Government’s theory—empower Congress to make
those decisions for him . . .
"The Framers gave Congress the power
to regulate commerce, not to compel it, and for over 200 years both our
decisions and Congress’s actions have reflected this understanding.
There is no reason to depart from that understanding now . . .
"Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions . . .
"The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”
Individual mandate - dead on arrival. Understand that clearly, because the implication goes way beyond health care. The Court has set precedent that the government, regardless of the subject of their action, cannot make you buy something or participate in any form of market activity. That leaves them only the power to tax, which is something they've always been able to do, and which can only originate in one place - The House of Representatives. If a spending bill doesn't start there, it doesn't start at all.
So, there is that "it's a tax" issue. In what should be surprising to no one, Mr. Obama and every single other member of Congress who supported The Affordable Care Act lied about it. Shocking, hunh? In argument before the Court, the flustered and befuddled Solicitor General Vernelli, when presented by the Justices with the possibility that the penalty might actually be regarded as a tax, said, in so many words - "Uhhh . . . . Well, yeah - sure. Okay."
Hence the following in the majority opinion -
"The most straightforward reading of the mandate is that it commands individuals to purchase insurance . . .
"After all, it states that individuals “shall” maintain health insurance. Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax . . .
"The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The '[s]hared responsibility payment,' as the statute entitles it, is paid into the Treasury by 'taxpayer[s]” when they file their tax returns . . . It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code . . . For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status . . . The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it 'in the same manner as taxes.' This process yields the essential feature of any tax: it produces at least some revenue for the Government."
It is no secret that Mr. Obama and the rest of his self-deluded rhubarbs in Congress repeatedly said that the alternative to buying health insurance was not a tax. But when the alimentary detritus was heading for the rotating blades, the guv'ment's toady defaulted to exactly that position as soon as it was held out.
And that is why the law was upheld, because it has always been the case that the United States government has been able to tax people to bring about laws and operations that are of plain benefit to the population at large.
So how would universal health coverage benefit the population at large?
Let's suppose I'm medically uninsured. Tooling down the road on my motorcycle without a helmet, I goof and wind up flying through the air with the greatest of ease, landing uncomfortably but not fatally. There is one thing that we can absolutely sure of - I will not be left lying in the street without medical attention. The natural compassion of my society combined with federal law that forbids a hospital from turning me away from stabilizing treatment means I will at least not be left as an organic speed bump on the road. You know as well as I do that this goes on every day and night. And because medical treatment means someone has to provide the benefit of their property in the form of skills and materials, the treatment costs somebody somewhere something.
Is it just for another to be forced to bear the cost of my treatment? I hope you already know the answer to that.
The injustice of others being forced to bear the cost of our treatment is the one viable objective of the Act. If everyone is insured, or in some way can be reasonably expected to be able to pay their medical bills, this assault on property rights is corrected.
The Act presented an unusual aspect. Going back to our illustration with the FAA, it is plain that we all have to pay some amount of tax to support it. Period. Buying a plane will not eliminate the tax. Flying an arbitrary minimum number of times will not eliminate it. Nothing does. No matter what you do regarding the aviation industry, nothing eliminates your obligation to support it, because supporting it provides for the general welfare of the United States.
So would the ostensible goal of the government regarding universal health care, but here's the unusual part: unlike the FAA, with the ACA, if you buy something, the tax is eliminated. To my knowledge, the government has never done anything like that before.
The idea is nice; the problem was the execution. It is a mind-boggling disaster. Every way in which they try to solve the problem, they make it worse. It is terrifyingly expensive, already projected to cost twice what we were told. None of the projected savings are in evidence. The regulations are a nightmare. A Fox poll - yeah, yeah, I know - indicates that 83% of doctors have considered quitting their practice if they have to put up with its madness. Supposing that number to be wildly exaggerated, lets cut it in half and say only 40% are considering it - it's still disastrous. It requires insurers to cover people with pre-existing conditions, perhaps the most ludicrous part of the law. This is the mental equivalent of requiring auto insurers to cover you after you've had the accident. I could go on, but what's the point? If you can't realize on your own that The Affordable Care Act will prove deadly to patients, insurance companies, businesses, and the economy in general, nothing I say is likely to change your mind.
Instead, if the government had taken the same tack that it employs with the FAA, we might have a good thing going. With the FAA, the government concerns itself only with protecting our property, which is exactly, and only, what it is supposed to do. Everything else is left up to the marketplace. You know, that thing that created such a wonderful place to live.
Before mentioning what I believe is the only acceptable response to the ACA, let me offer one particular high praise to Chief Justice Roberts. In his opinion, he stated that "If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . .
It is impossible to overstate the magnitude of that statement. Chief Justice Roberts has set into Supreme Court stare decisis the most bedrock principle of The Constitution for the United States of America: If the Constitution doesn't specifically tell the United States government to do it, it can't do it. The statement shatters the basis for a great deal of federal law. A good example of which would be Obamacare. Bravo, Chief Justice, bravo.
"The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”
Individual mandate - dead on arrival. Understand that clearly, because the implication goes way beyond health care. The Court has set precedent that the government, regardless of the subject of their action, cannot make you buy something or participate in any form of market activity. That leaves them only the power to tax, which is something they've always been able to do, and which can only originate in one place - The House of Representatives. If a spending bill doesn't start there, it doesn't start at all.
So, there is that "it's a tax" issue. In what should be surprising to no one, Mr. Obama and every single other member of Congress who supported The Affordable Care Act lied about it. Shocking, hunh? In argument before the Court, the flustered and befuddled Solicitor General Vernelli, when presented by the Justices with the possibility that the penalty might actually be regarded as a tax, said, in so many words - "Uhhh . . . . Well, yeah - sure. Okay."
Hence the following in the majority opinion -
"The most straightforward reading of the mandate is that it commands individuals to purchase insurance . . .
"After all, it states that individuals “shall” maintain health insurance. Congress thought it could enact such a command under the Commerce Clause, and the Government primarily defended the law on that basis. But, for the reasons explained above, the Commerce Clause does not give Congress that power. Under our precedent, it is therefore necessary to ask whether the Government’s alternative reading of the statute—that it only imposes a tax on those without insurance—is a reasonable one.
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax . . .
"The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The '[s]hared responsibility payment,' as the statute entitles it, is paid into the Treasury by 'taxpayer[s]” when they file their tax returns . . . It does not apply to individuals who do not pay federal income taxes because their household income is less than the filing threshold in the Internal Revenue Code . . . For taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status . . . The requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which—as we previously explained—must assess and collect it 'in the same manner as taxes.' This process yields the essential feature of any tax: it produces at least some revenue for the Government."
It is no secret that Mr. Obama and the rest of his self-deluded rhubarbs in Congress repeatedly said that the alternative to buying health insurance was not a tax. But when the alimentary detritus was heading for the rotating blades, the guv'ment's toady defaulted to exactly that position as soon as it was held out.
And that is why the law was upheld, because it has always been the case that the United States government has been able to tax people to bring about laws and operations that are of plain benefit to the population at large.
So how would universal health coverage benefit the population at large?
Let's suppose I'm medically uninsured. Tooling down the road on my motorcycle without a helmet, I goof and wind up flying through the air with the greatest of ease, landing uncomfortably but not fatally. There is one thing that we can absolutely sure of - I will not be left lying in the street without medical attention. The natural compassion of my society combined with federal law that forbids a hospital from turning me away from stabilizing treatment means I will at least not be left as an organic speed bump on the road. You know as well as I do that this goes on every day and night. And because medical treatment means someone has to provide the benefit of their property in the form of skills and materials, the treatment costs somebody somewhere something.
Is it just for another to be forced to bear the cost of my treatment? I hope you already know the answer to that.
The injustice of others being forced to bear the cost of our treatment is the one viable objective of the Act. If everyone is insured, or in some way can be reasonably expected to be able to pay their medical bills, this assault on property rights is corrected.
The Act presented an unusual aspect. Going back to our illustration with the FAA, it is plain that we all have to pay some amount of tax to support it. Period. Buying a plane will not eliminate the tax. Flying an arbitrary minimum number of times will not eliminate it. Nothing does. No matter what you do regarding the aviation industry, nothing eliminates your obligation to support it, because supporting it provides for the general welfare of the United States.
So would the ostensible goal of the government regarding universal health care, but here's the unusual part: unlike the FAA, with the ACA, if you buy something, the tax is eliminated. To my knowledge, the government has never done anything like that before.
The idea is nice; the problem was the execution. It is a mind-boggling disaster. Every way in which they try to solve the problem, they make it worse. It is terrifyingly expensive, already projected to cost twice what we were told. None of the projected savings are in evidence. The regulations are a nightmare. A Fox poll - yeah, yeah, I know - indicates that 83% of doctors have considered quitting their practice if they have to put up with its madness. Supposing that number to be wildly exaggerated, lets cut it in half and say only 40% are considering it - it's still disastrous. It requires insurers to cover people with pre-existing conditions, perhaps the most ludicrous part of the law. This is the mental equivalent of requiring auto insurers to cover you after you've had the accident. I could go on, but what's the point? If you can't realize on your own that The Affordable Care Act will prove deadly to patients, insurance companies, businesses, and the economy in general, nothing I say is likely to change your mind.
Instead, if the government had taken the same tack that it employs with the FAA, we might have a good thing going. With the FAA, the government concerns itself only with protecting our property, which is exactly, and only, what it is supposed to do. Everything else is left up to the marketplace. You know, that thing that created such a wonderful place to live.
Before mentioning what I believe is the only acceptable response to the ACA, let me offer one particular high praise to Chief Justice Roberts. In his opinion, he stated that "If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution. . . .
It is impossible to overstate the magnitude of that statement. Chief Justice Roberts has set into Supreme Court stare decisis the most bedrock principle of The Constitution for the United States of America: If the Constitution doesn't specifically tell the United States government to do it, it can't do it. The statement shatters the basis for a great deal of federal law. A good example of which would be Obamacare. Bravo, Chief Justice, bravo.
