Foreign Affairs has a piece on the Supreme Court’s ruling that the individual mandate to purchase insurance in the Patient Protection and Affordable Care Act (ACA; a.k.a. “Obamacare”) is constitutional (it most certainly is not). The piece is titled “Obamacare and the Court”, with the Orwellian subtitle “Handing Health Policy Back to the People”. The author, professor of law Barry Friedman, begins with some important background on the bill (emphasis added):
The debate over health care began when Obama promised to make health insurance affordable for all. To succeed, he needed to cut a deal with the health-care companies, which had long opposed such reform. In return for an expansion of the pool of insurance subscribers to cover their costs, the insurance companies agreed to neither deny coverage to those with preexisting conditions nor impose higher rates on them. To achieve this compromise, the Obama administration devised what would become known as the individual mandate: the government would require Americans to either purchase health insurance or pay a set amount to the U.S. Treasury….
In court, opponents of the ACA presented two primary claims. First, they argued that the individual mandate exceeded the bounds of the commerce clause, the power given to Congress by the Constitution to regulate interstate commerce. The states also targeted the legality of the ACA’s extension of Medicaid, a move that would cover many who were previously uninsured and deny existing Medicaid funding to states that did not comply.
Initially, few in the mainstream legal community took either claim seriously.
The takeaway: the mandate was inserted in the bill to serve the interests of the health insurance companies (notice the esteemed professor of law refers to insurance companies as “health-care companies”; indeed, under the U.S. health care system they have pretty much become that, which is perverse); and few people, presumably including our esteemed author, took seriously the argument that the Congress has no power under the Commerce Clause to force people to buy insurance.
(Sidebar: the mandate was not only inserted to serve the interests of the insurance companies. Forcing insurers to accept people with pre-existing conditions and to charge the same premiums to those who require a lot of health care as those who do not—or, in other words, effectively forcing those who require little to no health care to pay the same high premiums as those who require a lot—would obviously lead to conditions in which it would be foolish for people to purchase an insurance policy unless and until they were already sick. This in turn would obviously enormously increase the costs to insurance companies, who be forced to charge higher premiums, if they managed to stay in business at all. Thus, the central reforms of the ACA, which was ostensibly designed to increase the number of insured people and to lower the costs for insurance, would in fact decrease the number of insured and increase the costs. The mandate was the “solution” to this problem that our incompetent legislators created for themselves in the first place.)
How could a professor of law or any other legal professional not take that matter seriously? How could anyone fail to see that this would be an unprecedented claim to power under the Commerce Clause, that never before had the Congress claimed that under this clause of the Constitution it could compel people under threat of penalty to make a purchase? Obviously, the answer is that most in the mainstream legal community had their craniums up their posteriors. Friedman continues (emphasis added):
This all seemed uncontroversial and settled, until a powerful idea took hold. Randy Barnett, a law professor at Georgetown University and longtime champion of limiting the scope of Congress’ power under the commerce clause, devised a challenge: although the legislative branch had sweeping power to regulate existing markets, he argued, that power did not extend to forcing people to participate in those markets. For the first time in history, Barnett and his conservative colleagues contended, Congress had tried to regulate market “inactivity” rather than “activity.” In their view, people without health insurance had made a reasoned decision not to participate in the market, and Congress could not compel them to join it. The Tea Party and its fellow travelers took up Barnett’s argument, using broccoli as a rallying cry: if Congress could make Americans buy health insurance to prop up the market and improve public health, it could make Americans buy and eat broccoli, too.
To the surprise of many scholars, the legal case against the ACA soon gained momentum. Several federal district courts — all led by judges appointed by Republican presidents — overturned the mandate. The Obama administration initially attempted to slow the process down, but after a federal appellate court in Atlanta ruled against the ACA, the White House decided to bring the case immediately to the Supreme Court.
It “seemed uncontroversial” that the Congress could force individuals to buy something they didn’t want to buy? Perhaps this claim to power was “uncontroversial” in the legal community; it certainly never was among the general public. Once again, we return to our conclusion, assuming Friedman is correct in his observation and not merely trying to justify his own ignorance by associating his view with the majority, about the ineptitude of most legal professionals. (Our esteemed law professor in this case seems to have been among those asleep at the wheel, attributing his own “surprise” to “many scholars”. Notice how Friedman says that Barnett “contended” that this was an unprecedented claim to power. Contended? If even laypeople among the general public could see that this was a fact, how could legal professionals like our dear author not have recognized it? Is this what they got from all that money they spent in law school? Such a waste.)
Friedman explains briefly what happened with the Supreme Court’s ruling (emphasis added):
Roberts and the conservatives agreed that the individual mandate exceeded the power of Congress to regulate commerce. But Roberts then pivoted, joining with the Court’s four liberals in holding that the mandate could be characterized not as a penalty but as a tax and so was well within Congress’ broad power to tax for “the general welfare.”
All these intelligent legal professionals apparently never took Logic 101 at law school. It is hard to miss the glaring non sequitur employed by the Court with this reasoning: it does not follow that since the “shared responsibility payment” can be considered a “tax” that therefore it is “not a penalty”. There were numerous other arguments employed by the Court to arrive at the conclusion that the Congress has the power under the Taxing Clause to lay a direct tax on individuals for nonconsumption, all of them fallacious. Just as the Court dealt with the payment required for not buying insurance—which is described in the law as a “penalty” and which, as the Court itself observed, Congress specifically intended as a “penalty”—by declaring it to be “not a penalty”, so it dealt with the unconstitutionality of laying an unapportioned direct tax on individuals by declaring it to be not a direct tax, etc. (Welcome to Wonderland; for a complete breakdown of the Court’s ludicrous arguments, see my paper on the subject.)
Friedman notes that “the real underlying concern” that many people had with regard to the mandate “was for individual liberty.” He states that “Roberts addressed” these “public concerns about the mandate” by “ruling that people did have a choice: buy insurance or pay a relatively small tax.” Oh! Well, then, Liberty is safe, obviously, since individuals have “a choice” of doing one of two things that they would rather not do.
The fact that our esteemed law professor offers no further comment on the plain idiocy of Roberts’ arguments in this regard is instructive. In fact, just the opposite, Friedman argues:
Yet states have long issued such mandates; for example, 47 states require motorists to purchase auto insurance to obtain and keep a driver’s license. This fact made it difficult to argue the case from the perspective of individual liberty.
Notice how Friedman seems completely incapable of perceiving the difference between a state requiring vehicle operators who wish to use public highways to have insurance to protect the equal rights of others to the roads (i.e., if you cause an accident and damages to others, you must provide insurance that you can meet your obligation to compensate them for their damages) and the federal government laying a tax on individuals for nonconsumption. One can well imagine that the citizens of a state would be very much up in arms, so to speak, if their state government declared that everyone, including those who don’t even own a car, must either buy auto insurance or pay a penalty tax. It is not difficult in the least bit to argue against the mandate from the perspective of individual liberty. It is the simplest thing to do.
Friedman next writes something that is astonishing in light of his statement that it is “difficult to argue the case from the perspective of individual liberty.” Witness (emphasis added):
On the other hand, the issue that broke the least ground as a legal matter, the Court’s ruling on the authority of Congress to tax, may prove more important. The Supreme Court has traditionally given Congress broad authority to levy taxes, and it would have come as a shock had the justices decided to strike down the individual mandate as an individual tax. But Roberts essentially argued that although Congress could not regulate inactivity through a penalty, it could do so through a tax. In other words, Congress could not compel people to buy broccoli through a fine, but if they chose not to buy broccoli, it could tax them for not doing so. In coming to that conclusion, the chief justice gave Congress the license not just to tax activities that people do perform but also to tax ones that they do not perform — something a revenue-starved Congress may well take advantage of in the future.
So our esteemed professor totally recognizes that with this decision, the Court was asserting that the Congress had a broad new power to tax individuals for nonconsumption, that with this newly usurped power, the Congress can tax you for your inactivity in the marketplace, whatever form of inactivity it may be, in order to compel you to act as government bureaucrats would have you do.
And yet, our dear author asserts, it is “difficult to argue the case from the perspective of individual liberty.”
Think about that. Difficult to argue? What planet is Friedman living on? What country does he think the Founding Fathers envisioned when they designed the Constitution? That says a lot about both Friedman and the intellectual culture among the legal community in general. No wonder Americans continue to lose more and more of their Liberty. Of course, the general public is to blame, as well. Many Americans have cheered on their loss of Liberty, being equally ill-informed about the government’s usurpation of a vast and dangerous unconstitutional power as our nation’s legal professions.