Ever since Federal Judge Vinson struck down the Affordable Care Act, the legal blogosphere has been saturated with various arguments as to what the Commerce Clause should mean. I do not pretend to know whether or not the Affordable Care Act is good for the country, or, even if it is good for my family—a family that earns a very middle of the road income, that has a wife that is next to uncoverable, and has one child and another on the way. But what I do know is that in every other context in this world, words have meaning. If they didn’t, we wouldn’t use them and people wouldn’t be offended by them.
So it is puzzling to me how some can claim that current Supreme Court precedent does not decide this issue (see here, here) or that the Constitution, as designed, does not impose some sort of real limit on Congress (see here and here). It seems to me that both are wrong, because they are trying so hard, just as some Justices do, to bend the law towards their world-view and then criticize the other side for doing the exact same thing they have just done.
I doubt there are few followers of the law, and particularly the Supreme Court, which are not tied to one political party or the other. Consequently, there are few reasonably unbiased opinions out there on the whole health care debacle. I happen to be one of those people, because as a convicted felon I am fortunate enough to not have the ability to vote. I also have no party allegiance, and I believe that neither party, left nor right, has the best view of the Constitution or about the world in general. In other words, what I offer is a truly unbiased opinion.
First, no one can read the Supreme Court’s Commerce Clause decisions and seriously believe that the Affordable Care Act is unconstitutional based solely upon those decisions—unless of course they fail to accord the words in those decisions any meaning, which is kind of a common thread in this post. For all the posturing about Lopez and Morrison representing the Court’s definitive view on Congressional power, those decisions are, at bottom, outliers from a long line of decisions allowing Congress to regulate whatever they want to. Even the Court’s most recent rulings in Raich and Comstock reflect that Congress can regulate someone taking a crap in their backyard because it may affect the quantity of available fertilizer, thus affecting the price of fertilizer everywhere, and therefore affecting interstate commerce. I mean, if Congress can enact a statute to continue someone’s detention after the expiration of their sentence (see Comstock), because they speculatively believe the person presents some danger—a power far more scary than requiring people to purchase health insurance—then why can’t they, in the name of Necessary and Proper, enact statutes regulating inactivity? The answer is simple: they can.
I have read the arguments, including Judge Vinson’s, for why the Affordable Care Act is different in kind from the provisions at issue in Raich, Comstock and the like. But they read like a person moonwalking across a minefield, constantly being hit by explosion after explosion, and then acting as if nothing happened, even after noticing their arms are lying on the ground, severed from shrapnel. If I had read Judge Vinson’s opinion under a different caption, I would swear it is Justice Kennedy, not a district court. It doesn’t matter if you agree or not, Judge, you must follow the playbook you are given.
But don’t get me wrong, I can’t agree with this whole let’s let Congress do what they want because it will be better for the country mumbo jumbo that so-called progressives pass off as Constitutional theory. Did the people not place limits on Congress when they created this country? And if Congress doesn’t have to abide by those words we call the Commerce Clause what makes you think they will honor the words of the First Amendment? As someone who was told what to do by the government for ten years, I can tell you that, although you may like being told to buy health insurance today, you may not enjoy being told to do something else tomorrow.
I think we got to this point because courts slipped away from our Constitutional design. And for that, both parties are to blame. I doubt the colonial people or James Madison would have allowed the federal government to become the dominant police power in the country. Yet, this is exactly what Republicans created in the 1980s and 90s, with their attack on poverty, moronically entitled, the war on drugs. Democrats sat by idly and let them do it because they wanted to keep their power for use one day when they would comprise the majority and they could change the world for the better. By what, requiring us to purchase insurance? This is a beautiful little system where each side pretends to fight, but nothing really changes.
If the Court’s words mean something then we should at least be honest and acknowledge that. And if the Constitution bounces out some law we like, well then, we need to acknowledge that as well. Otherwise, what is everyone even fighting about?