Thoughts on the ACA Ruling

Luke Wachob

Emotions have been running high over health care for several years
now. The constitutional challenge to the Affordable Care Act
heightened those emotions even further, threatening to plunge the
country into an angry ocean of angst-ridden Tweets. Yesterday, the Supreme
Court affirmed the “Obamacare” Patient Protection and Affordable Care
Act in a 5-4 ruling, only placing limits on its provisions dealing
with Medicaid funds. As of this morning, the world still spins.

I don’t think I have the expertise to bash the Court on a complicated
issue like ACA, nor could I give commentary on the entire case. Don’t
use me as your news source! Instead here are the three most compelling aspects of today’s ruling. I’ll also test if we can blame this on 9/11, because that’s what American politics is all about.

1)      The individual mandate violates the Constitution, but it doesn’t.

Anyone waiting for the decision to come out yesterday noticed that CNN and
Fox News both initially reported that the mandate had been struck
down. This error is surprising from major outlets, but not too
surprising when analyzing the decision: the Court found that the
Commerce Clause cannot be used to mandate that someone health insurance.
This is the decision libertarians were looking for. However, the Court
bought the government’s back-up-to-the-back-up-argument* that the
mandate is Constitutional because it’s actually just a tax. Of course,
President Obama made clear many times during the bill’s passage that
it was not a tax, and this shifting of the law’s designation to fit
the convenience of the administration (it’s not a tax when we need the
public to support it, it is a tax when we need the Court to uphold it)
can only upset anyone with faith in democracy.  It certainly seems
unfair, anyway, that the White House was able to call it a mandate to
get it through Congress, then call it a tax to get it through the
Court. But still, today’s ruling is not as bad as a ruling under the
Commerce Clause may have been.

2)      The Court’s only ‘partisan’ when it disagrees with you

Where the individual judges ended up is interesting. Chief Justice
John Roberts joined the liberal justices in upholding the mandate as a
tax, while swing-vote Anthony Kennedy** enthusiastically joined the
conservatives. Had the 5-4 split occurred with Roberts and Kennedy on
opposite sides, the Internet would’ve exploded with cries of
partisanship. But which side would have been acting in a partisan
manner and which one would’ve been objectively applying the
Constitution? We’d never settle that question. This ruling once again
shows that the Court, while clearly sensitive to both public opinion
and partisan politics, is the least political branch of the three***.
The fact that the ruling was predicted by so few, and that the
justices fell on sides of the issue that experts didn’t anticipate,
shows that public anger aimed at the Court is based in a lot of
ignorance. Let’s not lose the lesson here: You can disagree with the Court, but don’t hate and don’t assume you know what they’re thinking.

3)      Can Congress give a private entity the power to tax?

The liberal enthusiasm for this decision is disheartening to me. ACA
is more corporate welfare than health care. Does the bill secure
universal coverage? No. But it is a handy subsidy for health insurance
companies. The Court’s ruling that ACA is constitutional seems to
suggest that the government may tell citizens: “buy this product, or
pay this penalty.” I’ve been lectured on corporate greed and the
cronyism that influences national policy from liberals for years, and
yet they mostly cheer for a bill that makes it illegal to not buy into
that corporate system. This ruling marries big business and government in a much more profound, unprecedented, and impactful way than Citizen’s United*****. Occupy should be flipping out right now!!

4)      So, can we blame this on 9/11?

Conservatives and libertarians are no doubt most disappointed with
Chief Justice John Roberts. That a conservative would affirm ACA is
surprising – indeed, as surprising as a conservative supporting the
Patriot Act, or national education policy, or unfunded mandates to the
states. I list those examples for a reason: we may not have had
today’s decision if not for George W. Bush. When faced with open seats on the bench, President Bush needed a conservative who would affirm the Bush Administration’s War on Terror policies. Roberts was that candidate. Had Bush been a true conservative, or had we not undertaken the War on Terror, or had other conservatives not sold out on their principles to either be a teammate or score patriotism points post-9/11 with Constitutional travesties like the Patriot Act, John Roberts likely would not have been selected. A different conservative probably would have joined Thomas, Scalia, Alito, and Kennedy in viewing the mandate as distinct from a tax. So, yes, we can blame this on 9/11.

* The first back-up argument was that the law was ‘necessary and
proper’ which the Court also struck down – presumably while chuckling
softly to themselves.

** Kennedy has been a libertarian's hero during this process. In oral
arguments, he said that the mandate fundamentally changes the
relationship between the individual and the government, and in today’s
dissent he accuses the majority of “a vast judicial overreaching”. My
heart sank when I heard the ruling, but Kennedy’s opening statement in the dissent,
“In our view, the act before us is invalid in its entirety”, cheered
me back up some. Somebody gets it.

*** Four, if you count the administrative bureaucracy, and five, if you count the military independently.

**** Interesting side note on Citizen’s United: According to a Reason article today, less than 1% of money donated to Super PACs has been from publically traded corporations. 86% has come from individuals, who have been making unlimited political contributions since 1976.


Healthcare Fiasco

Helen Shibut

            The Supreme Court demonstrated today that it is just as ignorant and arrogant about the federal government’s authority to require by law what it deems “good” behavior as the legislative and executive branches.  Chief Justice Roberts justified upholding the individual mandate portion of the law by saying the penalty exacted on people who do not want to follow the mandate is a tax, and therefore constitutionally authorized.
            Taxes are already levied on income, property, consumption, and pretty much every other area of American life.  What the government had not yet taxed was the act of not participating in some forms of commerce.  Today, the Supreme Court expanded the definition of taxation to include failure to consume the “right” goods and services. 
            In past years, Americans have paid consumption taxes on goods that our government does not think we should have, or thinks we should have less of, like cigarettes and gasoline.  In the future, we can expect to also be taxed for not spending “enough” on the “right” things—think vegetables, gym memberships, and charitable donations. 
            As a libertarian, I believe individuals should control how they spend their money and what risks they should take with their lives, so long as they do not threaten the freedom to others to do the same.  But even if I did not support freedom and self-governance on principle, the federal government’s abysmal track record on making decisions about how other people’s money should be spent would be enough to make me fearful of this kind of law. 
Our lawmakers are arrogant enough to believe that only they can make good decisions about what products we should buy—that is why they subsidize some products and place tariffs and taxes on others.  But the subsidized goods and services are often poor quality—think ethanol gasoline.   Subsidies hardly ever disappear, even when they become obviously harmful, because the small number of people who benefit from them fight vigorously to keep receiving taxpayer money. 
A healthcare system that is heavily controlled by the federal government is doomed to function—and fail-- like most other government-controlled enterprises.  Cronyism will abound as a few wealthy providers lobby the government to become approved national health providers and to place roadblocks in front of smaller companies.  The ensuing lack of competition will lead to more expensive and poorer quality goods and services. 
            The Republican and Libertarian parties will no doubt try to impress upon voters the massive implications of the healthcare law as we draw closer to the November elections.  Americans are already wary of big government healthcare, as indicated by declining public support for the law.  The Supreme Court ruling is certainly a victory for President Obama today, but it may inspire Americans to consider if the change we’ve gotten, as promised by the President, is the change we want for the next four years. 


Interview with Dr. James Lark

Helen Shibut

Dr. Lark served as the Libertarian Party National Chairman from 2000 to 2002.  He now coordinates college libertarian groups and serves as a systems engineering professor at the University of Virginia. This is an interview I did with him a couple weeks ago.