Intrepid reader Donald Pays has this comment on my last post:
What I was struck by in the oral arguments was the seeming ignorance of Scalia. At least I got the feeling the "liberal" justices and Kennedy were taking their jobs seriously. Even Alito and Roberts seemed to know a little bit about what was going on.
It would have been helpful if Donald had provided at least a bit of evidence for his complaint. Scott Johnson at Powerline has an actual example of a Justice who didn't seem to know what he was talking about.
Referring to the key New Deal Commerce Clause case of Wickard v. Filburn, Breyer asked, for example: "Didn't they make that man growing his own wheat go into the market and buy other wheat for his — for his cows?"
As Johnson points out, this is an absurd reading of Wickard. The government did not in any sense force Filburn to enter a market. Rather, Congress used the commerce power to prohibit Filburn from growing wheat for his own use, in excess of quotas that Congress had imposed. Perhaps Breyer's comment is, as Johnson says, evidence of "sheer intellectual laziness." I would not be so harsh. It is evidence of a justice trying to find a precedent for his preferred outcome where no such precedent exists.
I would also point out that Wickard is not a very helpful source, either judicially or politically. Would most Americans accept the idea that Congress could prohibit every single one of us from growing roses in our back yards in order to benefit florists? If this is indeed constitutional, do we want to say that Congress could further and compel farmers to buy wheat or sweethearts to buy roses?
Reader Bill Fleming has this:
The point is, we already have a default form of Universal Health Care in the US. Problem is, it is the most expensive, least intentional, purely reactionary form of it imaginable…
Reader A.I. makes a similar point:
Our current laws (perfectly constitutional or at least facing no court challenge) force hospitals to treat those who can't pay for their care. The hospitals pass those costs along to those who can pay because they have insurance. And those with insurance ended up paying more because of this cost shifting…
Thus if the court decides against the individual mandate, they will have reinforced an individual "right" for those who don't buy insurance to mooch off the rest of us…
I think that there is merit to both points. Notice, however, what Bill concedes: we already have universal health care! That is quite correct. Americans are not denied medical care because of any inability to pay. So whatever the expense and expanded government powers in PPACA get us, it isn't more health care for more people. That is contrary to most of the rhetoric in favor of the bill. Is the system going to become more efficient and less expensive under the act? It was evident from the beginning that no real cost reductions were built into it.
Likewise, A.I.'s point is contrary to the usual rhetoric, according to which the uninsured are victims. A.I. thinks they are moochers. So we are going to compel those free riders to pay their fair share. Okay. Does that mean that health insurance costs will go down from those of us who do pay for health insurance? In fact, the opposite is almost certainly going to be true. Whatever money is shaken out of the pockets of the moochers, it will be spent by the Feds on other things.
The proponents of the PPACA are constantly at odds with themselves about the effects and rational basis of the legislation. Eugene Kontorovich has this, at the Volokh Conspiracy:
There is a serious inconsistency between the government's arguments for the mandate and for the Medicaid expansion. In a nutshell, these arguments make opposite assumptions about the effect of financial duress on states' ability to execute their policy preferences. Defending the mandate, the government says states are individually incompetent to regulate insurance, because the first state to adopt generous rules would be inundated with the sick, and forced to abandon its policy. This is a basic race to the bottom story and has been around in Commerce Clause cases since the New Deal.
Crucially, the argument takes financial realities as dispositive: states cannot realistically choose to experiment with medical insurance individually because it would be ruinous. The economic effects mean that states do not really have the power to choose individual regulatory regimes.
Yet turning to the Spending power, the government asks us to believe that states can realistically turn down federal Medicaid funds, though it would be at least as ruinous if not more. Either the prospect of massive losses makes a state's ability to pursue a certain course illusory or it does not.
ObamaCare's defenders are not going goofy on Supreme Court precedents and constantly contradicting themselves because they are incompetent or intellectually lazy. The problem is that they can't openly acknowledge their real motivation. What they really want is not to save the pitiful uninsured or to make the healthcare system more efficient or, as the President initially argued, to reduce the burden of healthcare on the federal budget. What they want is a triumph of federal power over markets. If it survives, that is the one thing that the PPACA will surely achieve.