Wait, why isn’t this Supreme Court hearing on TV? And is there a live audio feed? Erik Wemple is all over this. What’s the point of having a historic event if we can’t watch it on TV while snacking? This is why we like sports, for example: It gives us something to do while we eat chips or in some such way engage in the activity known as snacking. The game justifies the snack, which in turn is something you do before you eat a proper meal, which is what you do before you have a proper dessert and thus reach a point of satiation that allows you to relax and begin snacking again. I’m a good eater, and I expect stuff to be on TV to keep me amused while I strap on the feed bag. Someone e-mail me the channel for this thing.
Today’s argument is about the individual mandate portion of Obamacare, and whether it’s constitutional. The advocates say the Commerce Clause gives Congress the right to do this. The opponents say it’s government overreach, because if the government can make you buy health insurance then it can come into your house and tell you to pick your socks and undergarments off the floor and if you refuse to do so the government can put you in leg irons and manacles and throw you in Slob Prison. And next comes Socialism. [Update: Scalia said today that under the government’s rationale, “you can make people buy broccoli.”]
I’m no lawyer, but it seems to me that asking people to buy health insurance isn’t a drastic departure from the government’s typical, irritating bossiness. Like I park my car on the side of the street and the government comes along and slaps me with a fine just because I’m blocking a fire hydrant next to a school and a nursing home. Also there’s this whole “tax” thing. Look at this boilerplate sentence in the Post story on the Day Two oral arguments: “The Patient Protection and Affordable Care Act requires that most Americans have health insurance by 2014 or pay a penalty on their 2015 income tax returns” [emphasis added].
You see where I’m going here: The government not only demands that people buy insurance but also demands that people give their money to the government. And what if you don’t hand over your money (which goes by the euphemism of taxes)? They throw you in jail. Worse, they hit you with “penalties and interest” on your unpaid taxes, and then they compound the penalties and interest with interest on the unpaid penalties and interest and a penalty for the unpaid interest on the unpaid penalties and interest. And you just pray for death eventually.
Government is onerous. But ... sigh ... I guess I have to acknowledge that it is not completely useless in terms of building a “society” or “civilization” or what have you. Government provides roads and national parks and aircraft carriers. If I want to drive on a road, or camp in a national park, or skipper an aircraft carrier, I guess it’s only fair that I pay taxes. And if I want to be able to go to the emergency room and have someone put a splint on my broken leg, then I guess it’s only fair that I buy medical insurance like everyone else rather than be a freeloader.
I’m thinking this through, as you can see. I feel a split decision coming on (though I’m told medication can control it).
Now, analysis. In big cases,the Supreme Court likes to go wherever the center of gravity is. There are exceptions, of course. But the Supremes don’t like to be radical, in general. Obamacare hasn’t yet been fully implemented, but striking it down could have repercussions far behind this case, as Michael Kinsley has pointed out. If the Supremes buy the argument that the individual mandate is an unconstitutional intrusion on personal liberty, then, as Kinsley points out, a whole bunch of other stuff that has been justified by the Commerce Clause (according to the Supreme Court!) also comes into question. The next thing you know the Court has to revisit the Civil Rights Act. You start to get into serious rollback mode. The Court will eventually wind up re-examining Marbury v. Madison, and you wind up asking the mind-blowing question of whether the Constitutional itself is constitutional.
And you know where this all leads. Yeah: We’re back to being a bunch of colonies. Ruled by the English. Forced to speak their accursed language and the whole nine yards.
[Update: This is a very smart analysis from Lyle Denniston. I’ve been reading the transcript of the hearing (not all the way through yet) and I think Denniston has called it right. The conservative wing sounded very doubtful about the mandate, the liberal wing was supportive, so once again it’ll come down to the Swing Justice. If we had a TV feed we could study Kennedy’s body languge and expressions. As Denniston notes, Kennedy said at once point, “the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries” — which is hard to make sense of at first glance here, but is the gist of the government argument. To wit: Health care is a unique industry, and the uninsured affect everyone else, and thus Congress has the right to regulate it. It’s not like food or cars.]