COM­MENT & ANAL­Y­SIS

Jus­tice Roberts’ cell­phone Court ar­gu­ments ex­pose weak­ness of Oba­macare’s foun­da­tion

The Washington Times Daily - - Opinion -

If the fed­eral gov­ern­ment can make in­di­vid­u­als buy health in­sur­ance, there’s noth­ing to stop it from forc­ing ev­ery­one to pur­chase a par­tic­u­lar cell­phone. As Chief Jus­tice John G. Roberts Jr. ar­gued Tues­day, there’s no dif­fer­ence be­tween say­ing ev­ery­one must ac­quire health in­sur­ance to cover catas­trophic med­i­cal needs and say­ing in­di­vid­u­als have to carry a mo­bile phone with the abil­ity to no­tify au­thor­i­ties in the event of a car crash or sim­i­lar catas­tro­phe.

Now that the Supreme Court has wrapped up oral ar­gu­ments in the Oba­macare case, the stakes couldn’t be clearer. Al­low­ing the in­di­vid­ual man­date to stand opens the door to a new phase of nanny gov­ern­ment — lit­er­ally. Jus­tice Stephen G. Breyer pro­posed that the very act of en­ter­ing into the world as a new­born babe could be con­strued as “com­merce” that in­vokes fed­eral reg­u­la­tory au­thor­ity. “The ques­tion is when you are born, and you don’t have in­sur­ance, and you will in fact get sick, and you will in fact im­pose costs, have you per­haps in­vol­un­tar­ily — per­haps sim­ply be­cause you are a hu­man be­ing — en­tered this par­tic­u­lar mar­ket, which is a mar­ket for health care?”

The ques­tion was not rhetor­i­cal. The Obama ad­min­is­tra­tion wants to ex­pand its cra­dle-to-grave power over the na­tion. This drive has ac­cu­mu­lated $15.6 tril­lion in debt plus un­funded li­a­bil­i­ties es­ti­mated by the Medi­care and Med­i­caid trus­tees at an ad­di­tional $56.2 tril­lion. That adds up to $628,000 in debt per house­hold. So it’s not an ex­ag­ger­a­tion to say the eco­nomic fu­ture of our coun­try is on the line. Cre­at­ing yet an­other fed­eral en­ti­tle­ment not only deep­ens the pool of red ink, it also es­tab­lishes a fa­tal prece­dent that won’t stop at cell­phones. For­get “cash for clunkers.” We’ll all be on the hook for buy­ing mis­er­able elec­tric cars from Gov­ern­ment Mo­tors in the name of stim­u­lat­ing the econ­omy.

Go­ing into this case, some lib­eral pun­dits pre­dicted a slam-dunk for the ad­min­is­tra­tion. Pres­i­dent Obama’s solic­i­tor gen­eral, how­ever, dodged and evaded un­der tough ques­tion­ing from the court’s in­tel­lec­tual pow­er­houses, Jus­tices An­tonin Scalia and Roberts. Lib­er­als on the bench pre­dictably at­tempted to save the dis­cus­sion by recit­ing the li­tany of big-gov­ern­ment prece­dents in place since Franklin D. Roo­sevelt, but even that may not be enough.

Swing Jus­tice An­thony M. Kennedy sug­gested Wed­nes­day that if the in­di­vid­ual man­date were struck down, the rest of the law would have to go. He said it would be “an awe­some ex­er­cise of ju­di­cial power” for the courts to cut out the law’s cen­tral fea­ture while leav­ing what’s left to wreak un­known havoc on the cost and qual­ity of health care.

Jus­tice Kennedy has it right. Yet even a decision strik­ing down the whole of Oba­macare leaves the coun­try far from where it needs to be, given the mag­ni­tude of the loom­ing debt cri­sis. The courts and Congress need to re­store the Founders’ vi­sion of limited gov­ern­ment if Amer­ica is to sur­vive.

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