A very good review from Georgetown law professor Randy Barnett. First he acknowledges that the "individual mandate" in which everybody needs to purchase health insurance is uncharted territory:
Such a mandate is unprecedented: "This is the first time in American history that Congress has claimed to use its power over interstate commerce to mandate, or require, that every person enter into a commercial relationship with a private company," Mr. Barnett notes. "As a judicial matter, it's also unprecedented. There's never been a court case which said Congress can do this." That doesn't establish that Congress can't do it, but the high court could reach that conclusion without undoing existing law.In addition to the expanded view of the Commerce Clause, Barnett also doubts the new "tax that wasn't a tax before" argument stands legal muster. Now the bad news: Barnett writes that the courts have deferred to Congress on matters like this, presumably because subsequent Congresses can fix legislative defects:
"If I want to bet actual money, I'll always bet the court upholds anything Congress does," Mr. Barnett says.Constitutional issues aside, Barnett also sums up my less-than-legal opinion on Obamacare: it just feels wrong.
"What is the individual mandate?" Mr. Barnett says. "I'll tell you what the individual mandate, in reality, is. It is a commandeering of the people. . . . Now, is there a rule of law preventing that? No. Why isn't there a rule of law preventing that? Because it's never been done before. What's bothering people about the mandate? This fact. It's intuitive to them. People don't even know how to explain it, but there's something different about this, because it's a commandeering of the people as a whole. . . . We commandeer people to serve in the military, to serve on juries, and to file a return and pay their taxes. That's all we commandeer the people to do. This is a new kind of commandeering, and it's offensive to a lot of people."No kidding. I have a bad feeling that the Supreme Court will not overturn this shoddy legislation because they'll argue that any redress can occur at the ballot box. What I think much more likely to happen is that, just like in Massachusetts, Americans will not purchase health insurance and opt to pay for the excise penalty (which is not a tax, remember). Then, when the uninsured get sick, they'll just purchase insurance because the new law requires the insurance companies to sell it. Just like in the Bay State, it's the gaming of the system, nationwide, with predictable results.
Extra - Flopping Aces: "Obamacare makes life much easier for Michelle Obama."