Thursday, December 16, 2010

A judge's decision does not trump commerce clause

As some may have heard, in Virginia U.S. District Judge Henry Hudson parted ways with other judges in his interpretation of the commerce clause in the U.S. Constitution, finding that the provision in “ObamaCare” that mandates “individual responsibility” in paying health care costs starting in 2014 violates the clause. The clause authorizes Congress “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” Vaguely worded indeed, and is clearly subject to wide interpretation; nevertheless, it is the legal foundation of the authority of the federal government to regulate commerce. Those on the right, like Hudson, might quote the Tenth Amendment, which states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” One may note, however, that the amendment says nothing about “commerce.”

Hudson’s interpretation is thus somewhat tortured; the argument that only states have the right to require citizens to purchase health insurance or pay a “fine” and not the federal government is not technically supported by the Constitution. Nor does any state constitution explicitly infer that it has the authority to force anyone to purchase auto insurance if you own a car, or be issued a hefty traffic ticket if you do not; yet they do. As a commercial enterprise, there is essentially no difference between auto and health insurance. A person can choose to have a car or not—and they can also choose to live, or not. Nobody chooses to get into a car wreck that may cost a $100,000 in repair and health care costs—nor does anybody chooses to become ill and face a $100,000 in medical bills. But that can happen, and someone has to foot the bill.

One of the more absurd and irresponsible arguments against even a token deduction in exchange for health coverage can be heard on Fox News, where those guys and gals who sit in a bar talking Wall Street mused that anybody without insurance can simply go into an emergency room and get emergency care right away; you can’t get preventative care that would have saved the system a few thousand dollars, but it’s only money. Isn’t our system grand? Of course, only public hospitals are required by law to treat indigent patients, and you have to be so sick that you might not survive the night to get care. What if you can’t pay subsequent astronomical medical bills? Not to worry: People who have insurance are going to “pay for it” out of the goodness of their hearts. Isn’t this a great country? Who needs health care reform? Who cares about skyrocketing costs?

Not surprisingly, Sarah Palin weighed in, calling for “true free market and patient-centered reform.” We heard that from Republicans all through 2009, and I’m still waiting for a right-winger to explain to me what the hell they’re talking about.

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