Originally Published on forbes.com on July 28th, 2011
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Earlier this month I reported on the decision in the suit by Thomas More Law Center against the Patient Protection and Affordable Care Act, which is derisively referred to as Obamacare. The Sixth Circuit found that the plaintiffs had standing to challenge the Act, but then went on to uphold it. The constitutional question is whether as I would put it “Not doing nothing” (i.e. not buying health insurance) constitutes interstate commerce. I understand the libertarian impulse behind the objection. On the other hand, I don’t want to live in a society where we just let people die and I recognize the concept of “adverse selection” that insurance companies would face if they are unable to deny coverage to the people who really need insurance.
The Center is not giving up the fight and has filed a petition to the Supreme Court. This issue falls barely within my beat because the enforcement mechaninsm will be a tax under the Internal Revenue Code on those who do not get a policy that meets minimum standards. It is in the same section as the already effective tax on indoor tanning services, which I told you how to beat recently. Quoting one of the dissenting judges the petition indicates that the stakes in the case are very high:
If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be.
So like the Defense of Marriage Act, this is another states rights case. Of course the Left likes states rights when it comes to DOMA but not when it comes to health care. The Right likes states rights when it comes to health care but not when it comes to same sex marriage. Just like the slave states liked states rights when it came to tariffs, but not so much when it came to personal liberty laws that interfered with the enforcement of the Fugitive Slave Law. When they let the Supreme Court handle that mess we got the Dred Scott decision and a few hundred thousand dead soldiers. Hopefully the result in this case will be better.
In Massachusetts we have a requirement similar to that provided for in the Patient Protection Act enforced by an additional state tax. We’ve also had marriage equality for several years. So far the world hasn’t ended. Incidentally, it was really, really hard to get fugitive slaves out of Massachusetts as the Anthony Burns incident showed. Personally, I’m 100% for states rights and 100% for federal supremacy. It just depends on what the issue is.