On Health Care, Justice Will Prevail

[groovedaddy]

THE lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

http://www.nytimes.com/2011/02/08/opinion/08tribe.html?nl=todaysheadlines&emc=tha212

[Vincardog]

1. For the system to work? Why not medicare part E for Everyone? That system will work and it is the

only one that does not leave us bled to death to benefit the parasitic companies

[FBaggins]

2. That's a straw man argument

If the case boiled down to whether or not the Congress has the ability to regulate interstate commerce, it would be an open and shut case... but that isn't the argument. Nobody doubts that "the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate"... the question is whether the ability to regulate it gives them the ability to mandate it.

And there is no precedent on that.

The argument is beneath Mr Tribe. If this is his best shot, it hints that the law will have a tough time surviving.

Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system.

No they haven't. The government can't create a new power by giving something away for free and then pointing out that those who don't pay for it themselves are electing to take a free ride. They could, for instance, be making a choice to just pay for their care themselves (whether we think that's wise is irrelevant), or they could just be taking an elective risk. Freedom means the right to choose... even bad choices.