Unforeseen Contingencies

The Supreme Court will issue its rulings on the PPACA/Obamacare this week. "We" at Unforeseen Contingencies are waiting to see how our Prediction #5 will do, that "[t]he U.S. Supreme Court will fail to rule that the individual mandate in the Affordable Care Act is unconstitutional."

I'm less sure of this now than I was -- or, in other words, more hopeful. The "individual mandate" is one of the clearest examples extant of government imposing its will on individuals, rather than individuals controlling a government which serves them. Nothing in the Constitution empowers the federal government to require us to buy anything; the Commerce Clause (Article I, Section 8.3) gives Congress the power to "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes..."

The power granted is the power to set basic rules and commercial regulations, and nothing more. In particular, states cannot establish barriers to interstate trade, nor to foreign trade. This is reiterated in Article I Section 10.2.  It is more than a stretch to say that Congress has authority to force us to buy health insurance -- it is simply making up stuff.  If the interpretation of the Commerce Clause given by PPACA supporters is accepted by the court, then what limits are there on Congressional power? It's difficult to see what they would be.  Law professor and NYT columnist James B. Stewart seems surprised that anyone would seriously suggest there be any limit to Congressional power under the Commerce Clause, and particularly that the limit should be individual liberty.   After all, in the past:

"As the nation’s economy evolved from largely local markets to regional, national and increasingly global ones, the Supreme Court has taken a progressively broader view of Congressional power under the commerce clause, even when individual freedom had to be sacrificed. This included limiting one farmer’s ability to plant wheat during the Depression because his production affected the overall supply and hence had an effect on interstate commerce..."

As examples go of what's wrong with the left-liberal view of the Commerce Clause, Stewart's is as good as any. Regardless of what SCOTUS has previously ruled, the Constitution does not give Congress the authority to run commerce -- it does not authorize central planning. Given the view of "progressives" that Congress may do essentially anything it wants, it's hard to understand why we'd bother with a Constitution anyway. For instrumental reasons, I'm hoping that the entire PPACA is tossed out. I do not expect this, though, because I do not see why severability is problematic, since the act contains all sorts of provisions unrelated to health insurance.  (By "instrumental reasons" I mean that I can't see any inherent reason why scrapping the mandate would require scrapping the entire act, although I think we'd be better off without it.)

One red herring among the arguments for the mandate is the claim that by not purchasing insurance, an individual is imposing costs on all the rest of us, since if s/he is stricken and requires health care and cannot pay, all the rest of us end up paying for it in our premiums.  This is false.  Health care is not a public good in any sense -- it is rival in consumption, and easy to exclude non-payers.  That "we" do not exclude is not equivalent to non-payers imposing a cost on us.  "We" "choose" (metaphorical collective choice here) to take on the cost.  This is a very poor argument for a mandate.

My real concern is that no matter what happens, we are about to see a war conducted on the Supreme Court and on judicial independence. This will be, ultimately, a war on institutional limits to government.