Tuesday, March 27, 2012

Initial Thoughts on the ObamaCare Oral Arguments

Today, the Supreme Court heard arguments over the constitutionality of the individual mandate in what is commonly called ObamaCare.  The transcript for the argument can be found here (audio can be located here).  My thoughts:

  1. It was repeatedly argued by the Government that the mandate is necessarily because this market is "unique."  There are multiple problems with this argument.  For starters, the Government was never clear as to what "market" they were referring to, health care or health insurance.  They routinely switched between them, when in fact they are not interchangeable.  I can go to an emergency room without insurance.  And there is nothing unique about the health insurance market.  The government stated that "virtually everyone" and "everyone" is involved in the market (again, unclear as to which).  That's simply not true.  There are people who never use health insurance and can pay for health care on their own; so far, I've been one of them.  Maybe in the future that will change, but I'm smart enough to act accordingly. 

    There are markets in which literally everyone is involved, markets like food and clothing.  Medical care is not one of them.
  2.  The government tried to argue that the health care market (whichever they were talking about) is unique because costs are shifted from the uninsured to the insured.  Again, this is not necessarily so: a great deal of medical costs could be and are paid out of pocket.  Most people do not experience major medical costs in any particular year.  The uninsured are, by and large, young people at less risk.  This mandate exists to force people who will not use medical care into the system at their cost, not for their benefit, in order to make the ban on using pre-existing conditions to determine insurance costs possible.  Without it, those health insurance companies go under and the whole system collapses. 

    Please note that this mandate isn't about helping the uninsured.  It's about using them as cash cows.  We place limits on Congress precisely to stop this sort of abuse.
  3. The Government's understanding of economics is a muddled mess.  People not buying insurance and not using medical care are shifting costs to the insured and taxpayers?  Um, if the uninsured acted otherwise it is true that prices could be different, but that can be said of any other market in existence.  If more people bought guns, the prices of guns would be different; we do not thereby say people not owning guns are shifting the costs to those who do own guns.  We don't say those not buying Chevy Volts are shifting the costs to those who do. 
  4. But what about those few uninsured who do end up costing the taxpayer by having the government pick up the tab?  Ok, riddle me this: how is giving some of them subsidized health care fixing that free rider problem?  These people can free ride because of government laws requiring healthcare providers to take care of them.  This is the result of unintended consequences of government interference, which of course requires more government interference, which will likely have unintended consequences requiring more government interference...
  5. "Before you move on, could you express your limiting principle as succinctly as you possibly can?" ~Justice Alito.  That is on page 43; see if you can find the limiting principle to the Commerce Clause.  There isn't one.  The closest thing the Government comes to an answer is if Congress creates a regulatory scheme so freaking huge that everyone must be in it in order to work, well, so be it.  That's insane.  The larger the undertakings of Congress, the smaller become our individual rights according to the Constitution?  The whole reason we have the Constitution is to set boundaries to what Congress may do; the very fact that Congress wishes to go beyond those limits is not a constitutional argument that it may do so. 
  6. This may very well come down to Justice Kennedy.  To Justice Kennedy: I know you don't want to make a big splash, that this is Obama's big political achievement and all.  It doesn't matter.  The Constitution, not the President's signature piece of legislation, is the Supreme Law of the Land.  We cannot set a precedent that each President may bypass the Constitution on one "Big Thing."  There is nothing about health care insurance that makes it unique.  The nation did not get entangled in this mess because it is something Congress needed to tackle, but because our President made it a campaign theme to get elected.  Again, there is absolutely nothing unique about this particular market in which you will find a limiting principle allowing an individual mandate in this case but only this case. 
  7. It's hard to even comment on the Government's case, largely because it is incoherent.  They literally argued yesterday that the mandate is not a tax and today that it is (a point explicitly pointed out by some justices).  Their argument seems to be that the uninsured cost the insured, but the fact is most people don't experience large medical bills in any particular year.  Most that do are elderly, with insurance, in particular Medicare.  None of this points to a reason why Congress can compel people into commerce via the Commerce Clause in a way that doesn't open the door to future mandates. 
  8. The opponents case is much clearer: the individual mandate is a novel idea that deserves strict scrutiny.  If it stands, there is no aspect of our lives that cannot be regulated, as not participating is just as much "commerce" as participating.  We have a government of limited, enumerated powers, and such an all encompassing power is inconsistent with a limited government.

    The opponents of ObamaCare were clear and concise.  The Government's case is a muddled mess, depending on shifting meanings of which market they are talking about, what shifting costs are, who they are shifted from and to, how they are shifted, and without a limiting principle on Congress should Congress decide to be really ambitious.  I've largely defended the opposition to ObamaCare, largely because it is the only position that can be defended.  Today's oral argument drove that point home, as commentators across the spectrum noted the Government's lack of preparation, in particular in comparison to the opposition.  That there are four justices that have never been in doubt is proof those four justices are intent on giving Congress unlimited powers come hell or high water; nearly every conservative justice has been considered a possible "Yes" vote, showing their intellectual honesty.  They want to see if this can work within the Constitution of limited governments, while their left leaning colleagues see no need to have such limits.  

    It's going to be a long wait until June. 

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