wikicommons 

Florida lower court judge Roger Vinson’s verdict that the individual mandate is unconstitutional proves the strategy of judge shopping really works.  The 26 right-leaning state attorneys general reaped a bonus when the U.S. District Court in Pensacola, Florida decided that the individual mandate was so intrinsic to the law that the entire law was unconstitutional, pronouncing, “The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker.” This means the score to date is 2-2 in terms of various judges around the country deciding this or that about the law.

            In this case, the only court that matters is the one for which you cannot judge-shop. And ever since Gore v. Bush, and reinforced by Citizen’s United, the blinders are off as to the political susceptibility of our Supreme Court.  Why should a ruling on The Patient Protection and Affordable Care Act be any different? But let’s say for a moment that legal arguments matter.  What exactly is the case for the constitutionality of the health care reform act?

            First, let’s not forget that this health care model was a conservative idea before it was a liberal one, one that, as the Washington Post’s Ezra Klein reminds us, moderate Republicans had been pushing for two decades.  The core issue so far is that of regulating interstate commerce, buttressed of late by the very broad language of “necessary and proper” Congressional authority to pass laws that, more less, just get ‘er done, as found in Article I, Section 8 of the Constitution.

            To begin to lay out the intellectual framework of the meaning of all this, let’s take trip to the Department of Highway Safety and Motor Vehicles.  In honor of Judge Vinson, let’s make it the Florida Department of Highway Safety and Motor Vehicles.  Right there on its website we find:

I am registering a vehicle for the first time in Florida. Is automobile insurance mandatory?

Yes. If you own a vehicle with at least four wheels and are registering it, you must have Florida insurance.

            Anyone notice anything suspiciously unconstitutional about this statement? Yes, the state is requiring that the consumer purchase a commercial product.  And what kind of product is it?  Insurance.  And why would the big, bad state require this action?  To create a system of uniform consumer protection so that uninsured drivers can’t run up the cost of insurance on the part of those who already carry insurance to protect them from uninsured drivers.

            To me this would seem to be a slam-dunk argument that government, in the generic sense, has an undisputed right to protect the body politic by requiring actions on the part of the citizens that cause them, ipso facto, if you will, to buy a product.  There’s no end to the examples you find:  car seats, motorcycle helmets, in fact, a wide variety of items, accessories, safety devices and whatnot.  So, at its base, the overheated argument commonly expressed as (from Google) “Being forced to buy a private sector product or service is no where [sic] in the Constitution” is just a canard.  The requirement to purchase an item is strictly attendant on some greater issue such as regulations in the interest of public safety.

            The example above is admittedly the example of a state government. What about the federal government?  The power to regulate interstate commerce is on its face a who-buys-what-and-how issue.  And the amplification of that power provided by Article I, Section 8 does not emanate from legal aether either (!), but from a solid tradition of government intervention along the lines of the automobile insurance model.

            I admit, I don’t like the insurance mandate as a means to universal coverage; I would have preferred a universal health care system.  But never mind that, this is what we’ve got—if luck holds out.  There is a trade off involved for those who would otherwise buy insurance only after they got sick and drop it once cured, if allowed—our deadbeat nation as the foes of reform would have it.  They have no viable individual (interstate) market because the best part of the market is already tied up in employer plans, leaving a remaining pool for the unemployed, underemployed, free lancers and people who happen to have preexisting conditions—which brings something about equal protection to mind, but never mind that.  In our society, we have this thing, this social covenant, that we do not allow people to die on the streets (unless they are undocumented workers maybe).  That leaves taxpayers holding the colostomy bag for any uninsured person who gets really sick. 

            Now, the conservative laissez faire vision of let the market rule would work just fine if we were prepared to let people die on the streets, because the moral hazard would be so great that people would just say oh what the hell and buy insurance. Or whatever.  We’ll let the Cato Institute explain that.  But, at the moment, we have this thin veneer of civilized behavior that requires that once the disease is killing you we throw in the towel and treat you.

            And thus, the federal government has this systemic problem. The systemic problem indeed relates to interstate commerce—doesn’t everything in a way?  And the “necessary and proper” clause reinforces this because this is indeed a life-and-death dilemma—a fundamental if you will on par with the federal right to levy an income tax in the interests of paying for the services provided by government.

            So, at bottom, it’s just the wrong question—this thing about a commercial product.  We do it all the time.  Do you think you can get a federal Fannie Mae loan without having home insurance?  Isn’t that a commercial product? This wrong question is just another appearance of the old rhetorical tool of reductio ad absurdum, reducing the argument to a stupid question.  “Well nowhere in the Constitution does it say that we can force people to [fill in the blank].”  But the fact is, the government can, and at all levels, more or less, does.

            None of this means, however, that the Supreme Court will support the law as written.  The Supreme Court may just go 5-4 that this represents a new, incremental overreach; as if saying, all that other stuff, water over the dam, but this, this, is an outrage.  They just might say that—despite the logic, the case law, the precedents and the whole nine yards.  But certainly, sooner or later, we will find out the answer on this one.