Monday, March 22, 2010

Ron prognosticates: The Supreme Court will overturn health care reform

Before the ink even had time to dry, the state of Virginia filed suit to challenge the health care reform bill as unconstitutional. And I think they'll succeed on both the merits and the politics.

To be clear: I'm a strong supporter of health care reform. The current system is badly b0rken and absolutely needs to be fixed. But forcing people to buy insurance -- or any other product made by a private company -- is pretty clearly (to my unschooled eye) not one of the federal government's enumerated powers. So the current health care reform bill should be overturned on the legal merits. Of course, the legal merits seem to have precious little to do with how the Supreme Court actually rules nowadays. But the politics also auger in favor of overturning. The current Court lists heavily to towards the right, and the cynical part of me is convinced that John Roberts in particular is eagerly awaiting the opportunity to stick it to Obama after the State of the Union flap.

I wish things were otherwise, but I gotta call 'em as I sees 'em.

[UPDATE:] It has been pointed out to me (and I actually knew this but spaced on it when I was writing this post) that the bill doesn't really force you to buy insurance, it just taxes you if you don't. This makes it part of a long tradition of the government coercing people to behave in certain ways through the tax code that have passed constitutional muster. So when I wrote "the current health care reform bill should be overturned on the legal merits" that was my own personal opinion. (Some days I'm a liberal, other days I'm a libertarian.) That is how I think things should be. It is clearly not how they are.

Notwithstanding that there are ample precedents for the government to coerce behavior through the tax code, I still predict that the Court will overturn. This prediction is based purely on my cynical belief that the Court is politicized, and if the Right can muster any reasonable arguments that the law should be overturned (and I think they can) the SC will tend to view those arguments favorably. I could be wrong. I hope I'm wrong. Time will tell.


Chris Ryland said...

Wow, something else we agree on heartily!

Forcing people to buy insurance is certainly unconstitutional.

Unknown said...

There is no doubt that forcing people to buy health insurance is unconstitutional. It goes against the right for the people to be free from the bonds of too-big federal government control that the founders intended. Also requiring the people to enlist in something that members of the congress themselves are free from is forbidden explicitly by amendment.

Dennis Gorelik said...

I didn't think about the possibility of this Health Insurance bill to be overturned, but I guess you are right -- it can happen.
It it happens -- it would mark end of current recession.

I wish Congress spend more time cutting expenses in Iraq than searching for new way to spend our taxes.

Unknown said...

From what I know of the bill (which is not as much as I could, I suppose), I do not think it forces you to buy insurance. What it does is tax you if you don't. This may seem a minor difference, but the government does have the power to tax.
Why can't it tax you for health care? I am not a constitutional scholar, but I do not see, from what I know, how it is unconstitutional.

Ron said...

> I do not think it forces you to buy insurance. What it does is tax you if you don't. This may seem a minor difference, but the government does have the power to tax.

Certainly. Just because I think the court will find the law to be unconstitutional doesn't mean that I think the law is actually unconstitutional. The court and I don't see eye-to-eye on a lot of things.

I think it will all turn on fine shades of nuance. What is the difference between a tax and a fine? Are there any limits to the government's power to coerce behavior through the tax code? Could it, for example, give you a tax deduction for attending church, thereby effectively fining people for not attending church? It is not a slam-dunk either way. And I could very well be wrong in my prediction. I *hope* I'm wrong. But the Kelso and Citizens United v. Federal Election Commission decisions have left me with a very cynical view of this court. I think they lean heavily to the right, so I think that if the lawyers preparing these suits can cobble together even a halfway-reasonable argument that the law should be overturned that the Court will be inclined to view those arguments favorably.

Mark said...

People who are not covered by health insurance will inevitably become a burden on the tax payers, because when these people fall ill or injured (which almost never happens at a time of our choosing), it will be up to the tax payers to pay their medical bills. Kind of like when an uninsured driver gets in an automobile accident, the tax payers end up taking up that burden.

Unless medical services are to be provided for free, I see nothing wrong with requiring people to pay for these services one way or another (because we will all most likely require such services at some point in our lives). The goal is to make such payments affordable; no one should go broke paying for medical services that are necessary to keep you alive and healthy for as long as possible.

I don't think this legislation will be overturned by the courts. The only thing these states are doing by filing these suits is wasting more tax payer money.