How Stupidity and the War on Drugs Made ObamaCare Constitutional

I've repeatedly used this space to say that President Obama's heath care reform act is nothing short of a monumental mess. I think that history will show that America would have been better off either doing nothing or passing full single payer rather than what he actually did sign. It certainly wasn't in the administration's short-term political interest.

Obama took single payer off the table even before planning with the Democrats started, hardly what anyone would call a stellar negotiating tactic. This was done because the president feared being called a socialist, which you might have noticed didn't work out all that well.

What Americans ended up with is the single largest corporate boondoggle in history. Not only is there an individual mandate requiring the citizenry to buy a service from the private sector, that sector maintains its anti-trust exemptions and is only really regulated at the margins. Moreover, a large number of those purchases are going to be subsidized by the federal treasury. There's a reason that the stock of the major insurance companies actually went up the day the law was passed, you know.

The Republicans, being Republicans, couldn't defeat the plan, not because of their minority status in Congress, but because they're stupid. Instead of pointing out that the bill would constitute the single largest tax increase in world history, they relied on ridiculous shit like "death panels." It was among the amateurish moves I've ever seen and further evidence that no wise political party should let Sarah Palin anywhere near policy or politics.

Then a boatload of states attorneys general, mostly Republicans, began filing awesomely silly lawsuits challenging the constitutionality of the individual mandate. Of course, that ignores the fact that there was an employer mandate in Richard Nixon's 1974 bill and that the individual mandate was invented by Senate Republicans in 1994, nearly forty of whom voted for it.

Furthermore, if the law is unconstitutional, there's really no need for today's GOP to promise its repeal, now is there? Well, there actually is because the Republicans are lying. I told you back in March that it's constitutional, if dangerous and dumb, and courts are starting to rule that way.

The Federal Court for the Eastern District of Michigan today ruled that the individual mandate is permissible under the Commerce Clause, which is only one of three ways that I believe that it would be upheld, the other two being the Necessary and Proper Clause and the Congresses inherent taxation power.

Here are some key passages as selected by Ann Althouse;

The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market.

Which is more than a little true. Everybody gets sick and everybody dies, which effects interstate commerce. Under the extremely broad definitions that the Supreme Court has applied to the Commerce Clause, you almost have to agree that few things effect commerce quite like getting sick and dying.

As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce.

Cost was the whole point of passing the law in the first place. if you agree that the uninsured were having an inflationary effect on the cost of health care across the country - and everybody agreed that it did - you again impact interstate commerce, thereby allowing congressional intervention.

No matter what you do with health care, you can shoehorn the Commerce Clause into it. And you know who you can blame for that legal principle? President Bush and the Supreme Court's majority, including Justices Scalia and Kennedy, in Gonzales v. Raich, that's who!

Raich was one of the most absurd opinions in my lifetime and one that stretched the Constitution to the point where it almost has to allow for ObamaCare. The Bush administration could have and should have dropped it, or better still, picked a better argument, but no one has ever accused John Ashcroft and Alberto Gonzales of being legal or intellectual titans.

Here's the background. In 1996 California voters passed Proposition 215, which legalized medical marijuana and even allowed licensed users to grow limited amounts of it themselves. Amazingly, Republicans, who love voter referendums when they do things like ban gay marriage, had a problem with this. The federal government had a problem with it because marijuana cultivation and possession are against federal law.

The Justice Department could have argued Raich on the Supremacy Clause, that stipulates that federal law trumps anything that the voters or the legislature of a given state do. That would have been a slam dunk, except for the fact the federal drug laws that don't involve importation or interstate distrubution are themselves of dubious constitutionality. That aside, I'm not aware of anyone who thinks that you would get a 5-4 majority opinion vacating most federal drug laws.

That's why the administration and the Court majority went with the Commerce Clause argument. The almost fantastic reasoning behind it was that even growing your own pot for personal use somehow effects price and accessibility in other states. I'm not sure how, other than magic, which is something better left to the good offices of Christine O'Donnell. As precedent, the Raich majority cited the 1942 Wickard v. Filburn decision that upheld New Deal crop controls for farmers.

And, oh how Republicans rejoiced! Until now because Thomas More Law Center, et al v. Obama, President of the United States (PDF) relies almost entirely on the reasoning in Raich and the Federal Court for the Eastern District of Michigan cites it as controlling precedent.

If the plaintiffs in More Law Center appeal and get to the Supreme Court, they're fucked! The Court is going to have a very difficult time reversing themselves on decision that they authored only five years ago without looking like ghouls, simpletons or both, although Justice Scalia already managed to do that in his Raich concurrence.

More importantly, I have a hard time seeing how the Court overturns ObamaCare on Commerce Clause grounds without invalidating a whole slew of precedents, any number of which involve federal criminal laws. Which isn't to say that I'm necessarily against that. I'm more than confident that the states are more than capable of passing laws against, say, possessing heroin or child pornography and, as a matter of fact, each and every one of them already have.

However, if Republicans were more careful about what they wished for in 2005, they'd be in a much better place today.