The challenges to the health care reform legislation are for the most part political posturing. There is, unfortunately, not a GOOP attorney general in the land who does not want to be Governor, then maybe President, and the path to power currently opened appears to lead through this silliness.
Of course, there has never in our history been a more partisan Supreme Court than this one, and I have no doubt that Antonio Scalito and company would destroy the legislation if they possibly could. Hopefully, Justice Stevens will not retire, and Justice Ginsburg will live until after this case is heard.
You have to dig through the bullshit pretty deep to see what the real issues are. Here are a couple of comforting notes.
The first issue is the claim that the “mandate” that citizens buy health insurance is unconstitutional because it forces citizens to buy a product from a private company. Of course the states mandate that people buy car insurance, but that is squarely within the state’s “health and welfare” powers and is not on point. More relevant is the fact that the federal government does mandate the purchase of flood insurance for some homeowners. The distinction there is that the flood insurance is a single payer, FEDERAL program, so the government is not mandating purchase from a private corporation. The most useful point is the fact that the “mandate” is not a mandate. The legislation levies a tax on people who do not have health insurance. They are not required to buy insurance, but if they do, they don’t pay the tax. In short, there is no mandate. The taxpayer has an option not to buy insuance at all. And because the measure is the exercise of the federal government’s taxing authority, it is, in the words of the Supreme Court, “plenary” and is constitutional.
The second argument of interest is that the expansion of Medicare is an unconstitutional violation of the Tenth Amendment. (The states’ rights clause.) Couple notes about this. First, if it is unconstitutional to expand Medicare, isn’t it unconstitutional to have it in the first place? The likely reason it is not unconstitutional in the first place is that it is voluntary. States are not required to provide Medicare for their citizens. They can stop taking the federal money and drop the program at any time.
Let’s see how many of those hot dog attorneys general are willing to run for Governor on that platform.