As Pejman kindly notes below, my column this week for Hoover’s Defining Ideas focuses on the continuing death spiral of Obamacare. Quite apart from the policy problems, however, I also note that the way this disaster is playing out ought to lead us to rethink the legal analysis of the program. As I write:
The President’s adamant position in the face of an industry-wide insurance meltdown ought to force a serious reconsideration of the constitutional issues at play over Obamacare. As everyone recalls, the constitutional challenges raised in the Supreme Court case over Obamacare, National Federation of Independent Business v. Sebelius,were over issues of Congressional power, not of individual rights. Chief Justice Roberts walked an implausible line when he held that Congress did not have the power to enact the legislation under its commerce power, but could do so under its power to tax and spend for the general welfare of the United States. From the outset, no one took seriously the view that the individual mandate posed any threat to the individual liberty protected under the Due Process Clause of the Fifth Amendment. Our New Deal legacy has left economic liberties to the tender mercies of the national and state governments. The individuals who are bound by minimum wage and mandatory collective bargaining laws have grounds to attack a statute that proclaims it protects patients and supplies them with affordable health care.
One real price of the first generation challenges under the tax and commerce powers is that they focused exclusively on a small slice of the overall legislation, thereby ignoring its most coercive and corrosive effects. But the extraordinary claims for government domination over individual rights comes front and center when the President announces that he will protect the fundamental right to healthcare by barring ordinary folks from acquiring coverage in the voluntary market, in order to force them to seek coverage they don’t want—like treating maternity care for men as an essential minimum benefit—in a nonfunctional government market that serves none of their personal needs.
The Obamacare fiasco now flunks Justice Holmes’ extreme rational basis test in the 1905 decision of Lochner v. New York: “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”
In the light of day, Obamacare is that bad, even if the minimum wage law is not. Even the most ardent defender of government power must concede that it is sickening when a president tells people without healthcare insurance that they must navigate his government websites or go without. If “the right to healthcare” is fundamental, Obamacare violates it. Delay here is no option. If left in place, every single structural problem that besets Obamacare today will continue to wreck innocent lives a year from now. Striking it down is an act of mercy for the American people.
You can read the analysis in its entirety here.