Class Warfare Blog

November 18, 2011

SCOTUS to the Rescue?

The Supreme Court of the United States (SCOTUS) has decided to hear whether the Affordable Care Act, aka Obama Care, is constitutional to the substantial applause of conservatives. “SCOTUS to the rescue” is their battle cry! This action by the high court was expected as a great many state’s Attorney’s General had brought that question to federal courts and conflicting opinions have been rendered by those lower courts.

The primary question (yes, there are more than one) is whether the Congress has the right to compel U.S. citizens to purchase health insurance. I will leave the question of what is left of the Affordable Care Act if SCOTUS says “no.” Right now I want to look at what powers the Congress already has, the context of the debate, as it were.

The constitutional power most applicable is in Article 1, Section 8 which states that Congress has the power: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. This is referred to as the “Necessary and Proper” clause by Constitution geeks. I have already spoken on how the Founders: a) were not in favor of small government, b) greatly exceed their mandate to go as far as they did, and c) were very leery of limiting the actions of future Americans, so I will not reiterate those points here.

According to the Constitution, Congress can legally (by being confirmed by past SCOTUS rulings on their actions):
1. Require you to pay for a government-run retirement program (Social Security).
2. Require you to pay into a government-run health care insurance program (Medicare).
3. Require you to pay income and other taxes.
4. Require you to serve in the military (various “drafts”).
to name just a few requirements. Military drafts, in effect, are confiscations of your person! If you fail to comply with the requirements of a draft, you can end up sitting out the associated conflict in jail. This basically is assuming total control of your person.

Requiring citizens to purchase health care insurance is small potatoes compared to these. I must add that the argument that “the fine for not buying insurance is so minuscule as to be negligible” has no merit because once a fine has been accepted, Congress can increase it to any amount they wish. So, don’t bother making that argument.

In a country in which you must purchase insurance to be able to drive on government-built roads and bridges, and you must buy multiple insurances (mortgage insurance, fire insurance, earthquake insurance, flood insurance) for a bank to give you a mortgage, I would find it passing strange to find that Congress could not do what the states and private businesses do every day.

Also, consider that Congress could pass a tax on all citizens to cover the costs of health care services for the indigent (which cannot be denied by law). The insurance requirement is essentially the same thing.

The argument of “if the federal government can make you buy something from a private vendor, like an insurance policy, they could make you buy anything” is totally specious. There must be a compelling interest for the government to take any such action. In the health care situation, the health care segment of the economy has grown to almost 25% of all economic activity. This threatens our viability as a nation and government action is needed, the government being the representative of “all U.S. Citizens.” Since we got into this situation by letting “the Market” do its thing, it looks incredibly irresponsible to adopt the position that “the Market will fix what is broken.”

And the really scary question no one is yet asking is: What are the repercussions if SCOTUS decides Congress does not have that power? How does it affect all of the above situations and how does it affect the Congress into the future?

All of this aside, we are losing focus on the issue of affordable health care. German citizens have comparable health care to what we have, yet pay half of what we pay. What are we to do? I will answer that question in my next post.



  1. Wickard v. Filburn clearly establishes the precedent that the federal government may indeed apply the issuance of an individual mandate. Thus, such laws as the individual mandate does have a constitutional basis. If the SCOTUS were to declare the individual mandate as unconstitutional, then that would break with precedent.


    Comment by hazencage — November 18, 2011 @ 12:33 pm | Reply

    • Thanks! I haven’t a clue what this Court thinks, especially after the Citizens United ruling. They don’t seem to be afraid to overturn settled case law and Justices seem to think it is okay to accept dinner invitations from firms with cases before the court, so who is to say what they will do?


      Comment by stephenpruis — November 18, 2011 @ 2:32 pm | Reply

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