Real Clear Politics
Is not doing something the same as doing it, and should government be allowed to force you not to do the thing you’re already not doing by making you do it so you don’t not do it anymore?
That is just one of the perplexing legal questions the Supreme Court will likely find a way to say “yes” to in July after it wrestles with the constitutionality of Obamacare.
Once the court upholds the individual mandate — a provision that allows politicians to coerce citizens to purchase products in private markets (or, in this case, state-backed monopolies) — we will have precedent that puts few limits on the reach of Washington and crony capitalism. And beyond policy, Obamacare demonstrated why we should be cynical about government.
I suppose it starts with process. Obamacare was shoved through the sludge of parliamentary trickery, lies, horse trading, cooked-up numbers and false promises. Even after waiting to see what was in the bill, as Nancy Pelosi suggested, there was a historic electoral backlash. (Some people just don’t know what’s good for them.)
As for the court’s decision, it probably won’t imbue many people with any more confidence in process. Supreme Court Justice Elena Kagan — only recently charged with defending the administration’s positions in federal courts as solicitor general, working there while the health care law was being written and picking the legal team to defend it — will be rendering her entirely untainted decision on the matter.
Nor, as we learned this week, is it reassuring to find out that while the House was debating passage of Obamacare, Kagan and well-known legal scholar Laurence Tribe, then in the Justice Department, did a little dialoguing regarding the health care vote, and according to documents obtained by Media Research Center, Kagan wrote: “I hear they have the votes, Larry!! Simply amazing.”
Nothing says impartiality like double exclamation points!!
Supreme Court judges are under no legal obligation to recuse themselves from any case, mind you, though the U.S. Code has some rubbish about a judge’s disqualifying himself “in any proceeding in which his impartiality might reasonably be questioned,” especially when the person in question has previously served as counsel or witness in the same case or has expressed an opinion about the outcome.
Why all the distrust and cynicism, you ask? We can trust judicious elected officials not to abuse legal precedent and pass legislation that micromanages the lives of citizens. They would never force Americans, for instance, to purchase broccoli (though when this was hypothetically suggested to then-nominee Kagan, she saw no legal hurdle) or decree exactly what sort of light bulbs a citizen can purchase.
The Supreme Court may find that the commerce clause has omnipotent powers because in the age of hyper-trade and globalism, everything touches everyone and everything is interconnected. Health care is a necessity. Like food. Energy. Housing. All of it up for grabs. The court may find that if an individual acts irresponsibly — or just acts in a way the majority deems unhelpful — he can be impelled by the state to partake in the plans of the many.
Judges can come to any decision they’d like, but Obamacare is an affront to the spirit of the Constitution. People just need to be reminded.
Now, numerous news organizations have falsely reported that the Supreme Court agreed this week “to decide the fate” of Barack Obama’s health care policy. Fortunately, the fate of Obamacare can still be decided by voters and — more likely, in time — by its overwhelming fiscal and moral failure. The court does not historically like to strike down federal legislation. Those who oppose Obamacare might hope for the best in July, but rather than stake their argument solely on the constitutionality question, they should be prepared to fight on grounds of bad policy and corrupt process. They have a strong case to make.