It’s finally upon us: the court case of the decade. Not since Bush v. Gore (2000) has a Supreme Court case garnered such widespread coverage and clout before a decision has even been passed — although it seems that only the press and countless politicos are aware that it’s taking place this time. There are essentially four issues the court heard arguments on, starting March 28. First, can the issue be challenged before it has taken effect? Second, does the “individual mandate” (minimum coverage provision) violate Congress’ constitutional powers? Third, is the mandate “severable” from the rest of the law — does the whole thing have to be struck down if the mandate is deemed unconstitutional? Finally, did the expansion of Medicaid (which threatens cutting funding if states choose not to expand the program) violate the principles of federalism?

It should come as a surprise to no one that I fully hope the Affordable Care Act will be upheld in its entirety. The individual mandate was put into place because it is the only means by which we can insure individuals with pre-existing conditions and other factors that would place them in the “high-risk pool.” Without it, people could easily go without health care for years until developing a serious condition, at which point they couldn’t be denied coverage (which would drive up rates for the rest of us). The idea that all Americans should be required to carry health insurance is neither radical nor unconstitutional. First off, you are already required to carry insurance for other purposes — most states, for instance, require automobile insurance (at least accident liability coverage) for all vehicle owners, because the simple act of owning a vehicle threatens to impose high costs on the rest of society if the unexpected happens. Secondly, healthcare is truly in a league of its own, because it is the one thing that literally every human being needs during their lifetime and which passes high costs onto society if not handled individually. I guess the alternative would be to deny people entrance to the emergency room if they can’t pay for it, but that’s morally reprehensible. The government has the authority to tax its citizens, within reason, to help society and civilization function properly. This is a simply a tax on those who are passing on the costs to others. That’s clearly supported by the Commerce Clause and Elastic Clause of Article I of the U.S. Constitution. The GOP should know that, because they were the ones who created the idea in response to Clinton’s unsuccessful health care plan of 1993.

That being said, there’s a lot in the Affordable Care Act that really has very little to do with that provision. I can stay on my parents’ plan until I’m 26. We can keep expansion of federal funds intact. We can probably even keep preventive care free of charge; that, too, lowers the cost to society in the long run. There’s a lot in this bill, and it is curious that defenders of “judicial restraint” are calling for the Court to strike down the entire thing. Nobody likes “activist judges” unless they’re on your side.

The idea that the expansion of Medicaid is some sort of inhuman, unprecedented coercion is ludicrous, incidentally. Federal policy is commonly passed onto states by linking it to federal funding. It’s called a “categorical grant” — you offer to give states much-desired funds, but you attach conditions to these funds. Congress holds the purse strings; it should be able to pull them if necessary. The states have their own treasuries if they don’t like it.

Even with all the bill’s qualities that are fully separate from the guaranteed coverage provisions, it would be devastating to see guaranteed coverage be struck down. Health care is a human right that should be kept affordable and accessible to everyone, regardless of how lucky they are. Obamacare: still better than “I Don’t Care.”

—Daily Nexus liberal columnist Geoffrey Bell


In Response, Right Said:


Let me begin by answering my counterpart’s four questions: 1) Yes, obviously; It doesn’t matter if a law’s implementation would lead to Xanadu (which Obamacare won’t); If something is unconstitutional, it’s unconstitutional — no waiting is necessary for it to be tried in court. 2) Yes, I’ve already explained how in my article. 3) No, even according to the administration (up until the last few weeks, anyway), the costs to the insurance industry and the country would be cataclysmic without coercing people into buying insurance. 4) Unfortunately not, at least according to the activist jurisprudence passed down to us from our different experimentations with bigger government.

As to judicial activism, my counterpart is purposely misleading you. Judicial activism is the concept that judges use their unelected position to effectively create law, which is a clear overextension of their powers as defined in the Constitution. Ever since Marbury v. Madison (1803), it has been the judiciary’s responsibility to review laws passed by Congress and strike them down when they are unconstitutional. If — as according to my counterpart they are — the proper role of the judiciary and judicial activism are one and the same, then there is no practical point in having a Supreme Court or any of the lower District Circuit Courts at all because they would have no ability to check the power of our national legislature and executive. No doubt my counterpart and the president wish there weren’t any check on unlimited power to the national government, but unfortunately for both that’s not how a functioning republic works — it’s a recipe for tyranny.