The Wall Street Journal editorial board writes Liberty and Obama Care 3/23/12:
The Supreme Court will not be ruling about matters of partisan conviction, or the President’s re-election campaign, or even about health care at all. The lawsuit filed by 26 states and the National Federation of Independent Business is about the outer boundaries of federal power and the architecture of the U.S. political system.
The Commerce Clause that the government invokes to defend such regulation has always applied to commercial and economic transactions, not to individuals as members of society.
This is another way of describing plenary police powers—regulations of private behavior to advance public order and welfare. The problem is that with two explicit exceptions (military conscription and jury duty) the Constitution withholds such power from a central government and vests that authority in the states. It is a black-letter axiom: Congress and the President can make rules for actions and objects; states can make rules for citizens.
The Commerce Clause was initially seen as a modest power, meant to eliminate the interstate tariffs that prevailed under the Articles of Confederation. James Madison noted in Federalist No. 45 that it was “an addition which few oppose, and from which no apprehensions are entertained.” The Father of the Constitution also noted that the powers of the states are “numerous and infinite” while the federal government’s are “few and defined.”
The best the government can do is to claim that health care is unique. It is not. Other industries also have high costs that mean buyers and sellers risk potentially catastrophic expenses—think of housing, or credit-card debt. Health costs are unpredictable—but all markets are inherently unpredictable. The uninsured can make insurance pools more expensive and transfer their costs to those with coverage—though then again, similar cost-shifting is the foundation of bankruptcy law.
The reality is that every decision not to buy some good or service has some effect on the interstate market for that good or service. The government is asserting that because there are ultimate economic consequences it has the power to control the most basic decisions about how people spend their own money in their day-to-day lives. The next stops on this outbound train could be mortgages, college tuition, credit, investment, saving for retirement, Treasurys, and who knows what else.
The entire article is well worth the time to slowly read.
I am no lawyer and could probably not even play one on TV. Besides the legal issues which can be argued much better than I can, there is the feeling by many of us that the federal government has lost all boundaries. I think this legal battle is an effort to define or re clarify those boundaries. Is it not enough that our toilet’s performance and the light bulbs we use are subject to political whims? Do we have to have the government intervene in our most intimate and valued decisions such as health care? Are we not allowed to exercise any personal judgment and responsibility over our lives? Do the imperfections of market forces allow the government to direct all of our decisions?
However the courts decide the mandate issue this health care bill is terrible on both economic and moral terms. We all realize that everything has a cost. It is the ability to recognize both the seen and unseen costs that escapes the supporters of this bill. When you expand coverage and place pressure on costs, quality and service will inevitably suffer. The reason that most Americans oppose this bill is that few want the government to make that judgment.