Morning Line: Mock trial arguments in a real world

Sam Smith

Now that another judge has upheld the individual mandate clause of Obamacare – making it three in favor and two against – it would be hard for the Supreme Court to ignore the matter.

You will read a lot about this in the coming months, but there are a several things that probably won’t be so clear:

– The mandate provision has already badly hurt the overall politics of the Democratic Party, the liberal cause and the effort for real universal healthcare, i.e. single payer. The popular resentment against the provision makes it one of the dumbest pieces of legislation passed buy Democrats in modern times.

– This is especially true since it has absolutely no morally arguable basis. The reason for the provision is – as even some Democrats have admitted – to give the private insurance companies enough of a guaranteed money flow so they wouldn’t fight the whole bill. It is, in fact, one of the greatest non-military corporate earmarks in history.

– Its justification requires a dangerous and unsupportable twisting of the Constitution’s commerce clause to suit the needs of the healthcare industry and the politicians they pay for. If it is approved by the Supreme Court, the number of things that the federal government can order you to do that have nothing to do with interstate commerce will explode.

The legal arguments for the mandate are a classic example of lawyers’ distorted intellectual manipulation parading as moral logic. No one has previously thought the commerce clause gave the federal government the right to order someone to buy something, especially people who mostly weren’t buying it because they couldn’t afford it.

The early cases of the commerce clause included such obvious issues as the federal government’s clear role in interstate waterways. But as late as fifty years ago, that same government’s new boating safety act was crafted so as not to unduly infringe on states’ options. In other words, on a matter of right that was infinitely clearer than the present case, the government acted with infinitely more responsibility.

Later, the commerce clause would be used by the New Deal and the civil rights movement to allow an equality of interstate commerce by American citizens, whether through a common minimum wage or the right to share a train station restroom with those of another color. An expansion of interpretation but a reasonable one.

The current twisting of the commerce clause is nothing of the sort and the sad thing is that, when the Obamites are all through with their arguments, they will lose no matter what happens at the Supreme Court because even they win the case, they will have angered a lot of people whose votes they need. They will have won the mock trial and lost some more elections.

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