National Post (National Edition)
Texas ruling good for U.S. constitution
If you read newspapers or listen to politicians you might be forgiven for believing a Texas judge just handed the One Ring to Sauron. Or at least took away poor, sick people’s health care because it was the most evil thing he could actually manage. Though possibly he simply ruled that the United States Constitution does not let Congress force Americans to buy things they don’t want.
Once and future House Speaker Nancy Pelosi shrieked that this ruling striking down the Affordable Care Act, or Obamacare, “exposes the monstrous endgame of Republicans’ all-out assault on people with pre-existing conditions and Americans’ access to affordable health care.” So let us pause briefly to refresh our conviction that only Republicans are lowering the tone of debate and jeopardizing judicial independence.
Feeling better? OK. Let us proceed.
There are three reasons for focusing on the politics of this ruling. One is even good.
The first bad reason is it’s easier. The second is journalists often share the left-wing “it’s all in the mind” attitude that politicizes everything by treating stable rules as a dirty trick.
The one good reason is that the question of what kind of healthcare system the U.S. should have is essentially political. But the question of what kind of healthcare system it can have is judicial. There are things the United States government can do under the constitution and things it cannot. And one thing it cannot do is force Americans to buy things.
Judicial issues are unfortunately complicated. So bear with me while i’ m not brief here.
For starters, it isn’t clear that Obamacare just bit the dust. It may only have tasted it, because this Federal District Court ruling may be overturned on appeal. What the United States government can do under its constitution is ultimately determined in practice by its Supreme Court. And its justices, like ours, are fallible mortals not demigods, and sometimes misunderstand the law, by embarking on a flight of fancy or keeping a covetous eye on the outcome.
As in 2012, when their Supreme Court ruled 5-4 that Obamacare’s so-called “Individual Mandate”
IT ISN’T CLEAR THAT OBAMACARE JUST BIT THE DUST.
requirement to purchase a certain type of health insurance whether you wanted it or not was constitutional. The majority acknowledged that Interstate Commerce Clause clearly gives Congress no power to compel purchases by citizens. But the majority said the tax penalty hammer converted this legislative overreach into a legitimate exercise of the taxing power.
It was an ugly piece of Constitutional Twister. And panicky. Evidently Chief Justice John Roberts, afraid striking down Obamacare would thrust the court into a fiery political debate, switched sides so late he ended up basically writing both the majority and minority opinions, leaving the latter unsigned.
Of course, as with Roe v. Wade, discarding jurisprudence politicized the court in ways hard to undo by saddling it with a precedent it can neither defend nor discard. I’d like to see the Court rely on it faced with a law requiring all Americans to buy guns, pet rocks or marijuana or pay extra tax. But regardless, the District Court in Fort Worth, Texas, followed this dubious logic at least part-way.
It said the individual mandate depended upon the tax penalty, so by repealing the penalty in late 2017 (effective 2019), or rather deviously reducing it to zero, Congress eliminated the constitutional foundation for the Mandate. But then it added that the Mandate was “essential” to Obamacare so when it fell, the entire law fell, too.
That part of the ruling might be overturned on appeal. Plausible constitutional arguments could be made either way. Clear?
Good. Now back to the politics. Whew. Trump stinks Republicans on fire YAAAAYYYY!
They might be. As many commentators have jeered, if Obamacare goes down, voters will have Trump and his party’s hides unless they replace it with another equally lavish and unaffordable form of free money, because American voters are hooked on boodle. As NBC noted cheerily this weekend, “Democrats eyeing 2020 try simple idea: Give voters cold hard cash” before profiling three Democratic senators’ plans for massive direct handouts that avoid getting bogged down in boring details like the above.
I’m not sure it’s something to celebrate. Bribing voters corrupts politics. As Max Boot warned in The Washington Post (and Monday’s digital National Post) the United States may be unable to face rising challenges from China and Russia because this bipartisan vote-buying bidding war is bleeding defence. And it breeds disillusionment: Just because a bill is called the Affordable Care Act doesn’t mean it contains care at all, let alone the affordable stuff. But let’s get one thing straight.
It’s one thing to hand out free money on an unaffordable scale. It’s quite another to distort the Constitution horribly to do it. Especially if you then claim someone else politicized the judiciary.