The following is an excerpt from OpinionJournal.com’s “Best of the Web” written by the editor, James Taranto.
The Jets Can Play There Instead
“Metrodome Unfit for Vikings-Bears”–headline, ESPN website, Dec. 15
No Argument There
Yesterday we argued that supporters of ObamaCare seem to have been caught completely flat-footed by the constitutional arguments against it–one of which prevailed earlier this week in a federal district court. To judge by a Washington Post op-ed carrying the bylines of defendant Kathleen Sebelius and her lawyer, Eric Holder, we were more right than we realized.
The piece is titled “Health Reform Will Survive Its Legal Fight.” Here is the basis for Attorney General Holder’s confidence in his client’s legal position:
It’s not surprising that opponents, having lost in Congress, have taken to the courts. We saw similar challenges to laws that created Social Security and established new civil rights protections. Those challenges ultimately failed, and so will this one.
Holder doesn’t explain the basis for his analogy, but if he means this as a legal argument, it is a pathetically weak one. True, Atlanta Motel v. U.S., the 1964 case that upheld the public-accommodations provisions of that year’s Civil Rights Act, provides support for the general proposition that the Constitution’s Interstate Commerce Clause should be interpreted broadly.
But the 1937 case that upheld the Social Security payroll tax, Steward Machine Co. v. Davis, actually points to a deficiency in the ObamaCare statute. In Steward Machine Co., Justice Benjamin Cardozo noted that the tax “is described in the statute as an excise.” This is not true of ObamaCare’s penalty for failing to purchase insurance. As constitutional scholar Randy Barnett noted in our July Weekend Interview:
“The bill doesn’t say excise tax,” Mr. Barnett says. “The bill does have excise taxes in it. Tanning salons are subject to an excise tax. Medical devices are subject to an excise tax. . . . This bill has an entire section . . . in which they’re trying to identify all the revenue-raising aspects of the bill for purposes of scoring its costs. They failed to include the penalty. . . . They didn’t even think of it as a source of revenue.”
Perhaps Holder means to draw a political analogy rather than a legal one–to suggest that, regardless of the legal merits, the Supreme Court will, as it has in the past, defer to the political branches of government and shrink from overturning sweeping social legislation.
But the high court has not always been so deferential. In the Civil Rights Cases (1883), the justices struck down the public-accommodations provision of the Civil Rights Act of 1875, holding that the 14th Amendment did not empower Congress to prohibit private acts of racial discrimination. It is because of that precedent that Congress emphasized the Commerce Clause in the Civil Rights act of 1964, giving the high court a way of upholding the new law while respecting its own precedent.
As a political matter, ObamaCare has far more in common with the Civil Rights Act of 1875 than with either the Social Security Act or the Civil Rights Act of 1964. The last two had broad public support and consequently were enacted with large bipartisan majorities. ObamaCare was passed over broad public opposition by a bare, one-party majority. (To be sure, the outcome of the Civil Rights Cases was a moral travesty. It does not follow, however, that the same would be true of a decision overturning ObamaCare.)
For Holder to predict that the Supreme Court will uphold ObamaCare because it upheld the Social Security Act and the Civil Rights Act is rather like predicting that the Washington Redskins and Cleveland Browns will face off in Super Bowl XLV because they were the NFL champions in 1937 and 1964, respectively.
Holder and Sebelius can’t even muster a coherent argument in favor of ObamaCare as a matter of policy. The op-ed opens with what is meant to be a heartstring-tugging anecdote:
In March, New Hampshire preschool teacher Gail O’Brien, who was unable to obtain health insurance through her employer, was diagnosed with an aggressive form of lymphoma. Her subsequent applications for health insurance were rejected because of her condition. . . .
Then President Obama signed the Affordable Care Act. Thanks to this law, O’Brien is getting treatment through a temporary program that provides affordable coverage to people who’ve been shut out of the insurance market because of a preexisting condition. Even better, she knows that in 2014 insurers will be banned from discriminating against her or any American with preexisting conditions. . . .
That’s what makes the recent lawsuits challenging the Affordable Care Act so troubling. . . . These attacks are wrong on the law, and if allowed to succeed, they would have devastating consequences for everyone with health insurance.
As a famous lawyer once said, “Failure is not an option”!
So why is it necessary to force people to buy insurance? Because “without an individual responsibility provision, controlling costs and ending discrimination against people with preexisting conditions doesn’t work”:
Imagine what would happen if everyone waited to buy car insurance until after they got in an accident. Premiums would skyrocket, coverage would be unaffordable, and responsible drivers would be priced out of the market.
You mean like Gail O’Brien, who waited until she was diagnosed with cancer before trying to buy health insurance?
O’Brien is the victim of a terrible disease, but she is not, as Holder and Sebelius make her out to be, a victim of invidious discrimination. Her inability to purchase insurance is the natural result of her own decision not to do so when she was healthy. What do Holder and Sebelius call a law that seeks to force the rest of us to pay for the consequences of her action? An “individual responsibility provision.” This is not merely a euphemism but an Orwellian one.
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