I’m sure everyone knows by now that Henry E. Hudson, a federal judge in Richmond VA, has ruled against the provision of the health care law that requires most American’s to buy health insurance. So, now we have to brace for a howl of outrage about judicial activism, judges who legislate from the bench.

Just tweaking noses, of course.

By the way, two other federal court jurisdictions have ruled these same provisions to be constitutional, paving the way for a lot more litigation and confusion. Certainly the Supreme Court will have to decide this one.


The NY Times reported today that not a single Democrat in the Arizona legislature voted for the illegal immigration bill that was signed into law this past week. I am curious what people think of that, relative to the Congressional voting for (and against) the healthcare bill.

I have a very simple standard for constitutionalism.

If a candidate wants to adopt a strict constitutional limits position and promises to legislate on that basis, then I will vote for him or her. That means he or she must agree to support legislation abolishing the 2010 healthcare reform bill, the Social Security Act, the Medicare and Medicaid programs, the various environmental protection acts (Clean Water, Clean Air, etc.), government regulation of nuclear power production, food and drug and consumer product safety, all agriculture subsidies, NASA, student loan programs, income tax deductions for home mortgage interest, and air traffic safety.

If they adopt the position that the Constitution was engineered to be a flexible, evolving framework, and based on that, they promise to retain all of the above functions of government, then I will at least listen to them. At least they are being intellectually consistent.

But if they campaign on the idea that the 2010 healthcare act is non-Constitutional, but will not sign on to legislation to eliminate all those other programs of comparable constitutionality, then I will reject that candidate for his or her hypocrisy.

Does this healthcare bill usher in an era of misery and misfortune for America? That’s what one would believe listening to some of the opposition to the bill. More taxes on the wealthy will kill jobs. More federal spending will drag the economy underwater. Expansion of government will tip us over the cliff of socialism.

There is what I would call “directional validity” to those concerns. This healthcare bill does move us in the direction of more taxes, more federal spending and more government control over the financing of healthcare. What we must consider, though, is not just the direction of those changes, but their magnitude. Living here in Chicago, if I drive one mile west, I am heading in the direction of driving off the cliff into the Pacific Ocean — but taking magnitude into account, I need not be concerned.

One means to gauge whether the magnitude of the tax increase component is to put it into historical context. “For most of the last three decades, tax rates for the wealthy have been falling, while their pretax pay has been rising rapidly. Real incomes at the 99.99th percentile have jumped more than 300 percent since 1980. At the 99th percentile — about $300,000 today — real pay has roughly doubled.” By contrast, “since 1980, median real household income has risen less than 15%.” [See here.]

In other words, we already have been where we are going. And it wasn’t disasterous; in fact, it was prosperous. This act certainly is a form of wealth redistribution. So too is the status quo, a steady trickle in the opposite direction. The question isn’t whether this act redistributes wealth. The question is whether it does so to such a degree as to be dangerous to our economic and social stability. Seems to me that it will roll back the tide to where we were in, what, 2000? 1995? 1990? Those were boom times. We prospered then. Why should returning to that point of wealth equilibrium make prosperity impossible now?

Maybe this isn’t a plunge into the deepest ocean of socialism. Maybe it is a tweak.

The next battle over the healthcare reform package may take shape in the courts. Eleven attorneys general have indicated an intention to file suit in federal court, alleging that the act is unconstitutional. I am no lawyer, but there is some intriguing legal reasoning here. In the words of Virginia Attorney General Ken Cuccinelli:

“With this law, the federal government will force citizens to buy health insurance, claiming it has the authority to do so because of its power to regulate interstate commerce,” Cuccinelli said. “We contend that if a person decides not to buy health insurance, that person – by definition – is not engaging in commerce, and therefore, is not subject to a federal mandate.”

Are there other instances where the federal government requires individuals to engage in such actions? It is surprisingly hard to think of any such precedents. There are plenty of examples where public safety is involved: commercial property owners required to purchase fire suppression sprinklers and car owners required to purchase seat belts, to name two commonplace examples. The legal distinction being made is that owning commercial property or a car is a voluntary act — you don’t have to own them, so you don’t have to buy sprinklers or seat belts. This act, by contrast, imposes a mandate on everyone, and there is no means to opt out. On the other hand, it is beyond conception that our entire nation could opt out of commercial property and car ownership; for tens of millions of Americans, there is no practical path to opt out. For them, sprinklers and seat belts are government mandates akin to health insurance under this new act. But it is hard to find a precisely applicable precedent for this.

Although constitutional validation may not be easily found in the commerce clause, that does not mean the act is without significant constitutional justification. Many acts of government have been justified (and upheld by the courts) under the so-called General Welfare language. Article I, section 8 of the U. S. Constitution grants Congress the power to “lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States.” Legal scholars have been debating the extent of this authority for the better of our nation’s history.

I have no doubt that there are “general Welfare” implications of the healthcare reform act. People without insurance drive up healthcare costs on the remainder of the population, shifting their obligations to others through bankruptcy, abuse of emergency rooms, consumption of charity care and other behaviors. The state has a valid interest in preventing these dysfunctions.

So I don’t know what the exalted legal minds of our time will say. From a pragmatic point of view, it seems highly unlikely that the courts will strike this down. Unless the legal issues all unambiguously point to unconstitutionality, the courts tend to grant wide berth to the other branches. Proving the inapplicability of the commerce clause is insufficient for the attorneys general to prevail; all the government needs do is find any constitutional justification for the act, such as general welfare. We’ll know soon enough.

The blogosphere and talk radio are awash with opinion that the healthcare bill just passed violates the Constitution. The 10th Amendment is suddenly back in the headlines for the first time since, oh, about 1791. Various attorneys general are signalling their intention to challenge this legislation on constitutional grounds — even before it has been signed into law.

For 220 years now, the federal government has been on a singular trajectory: MORE. This healthcare bill is not a change of direction in that regard; it is simply the latest instance. I can’t say whether that is, overall, a good thing or a bad thing. The empirical evidence is that we have two hundred plus years of federal expansion, during which we have become the greatest nation on earth. Apparently, at the very least, federal expansion does not preclude national greatness.

That being said, I would like to see something from our elected officials who have blasted this bill for being unconstitutional. They should consistently vote in opposition to the myriad of federal programs that have accumulated over the years which have no more constitutional validity than this healthcare package. If this new health bill is unconstitutional, then surely so too are Medicare, Medicaid, and Social Security. What’s the difference? Why do those programs deserve annual appropriations but this new one does not?

I’ll start by saying I have zero respect for the doomsday predictions of the Republicans. This will not end life as we know it, or magically make us “socialists,” or break the budget. Rule #1 is never listen to extremist rhetoric.

Of course, that rule applies to the claims of the left, too. This bill will not solve the healthcare crisis, or fix Medicare/Medicaid for the coming generations, or bring the cost of healthcare down to a manageable level.

But, considering what it does do, and doesn’t do, I think it’s an okay step. It will create mechanisms to include most Americans in the healthcare insurance market. Funding their insurance is clearly better than funding their bankruptcies and their routine care delivered through expensive emergency rooms. It will begin to rein in Medicare entitlements, to the tune of half a trillion dollars over the next decade. (I still don’t understand why conservatives were vehemently opposed to the constraint of an entitlement program.) It fixes any number of obviously dysfunctional aspects of the current insurance markets: pre-existing conditions, lifetime and annual caps, capriciously dropped coverage. It begins to rectify the problem of the millions of Americans who decline insurance, and then mooch off the system when they get sick or injured. And it makes a dent, albeit a modest one, in future federal budget deficits by imposing a reasonable tax.

I have said from the beginning of this debate that the only thing worse than this bill is the status quo. I still generally believe that, in the sense that there were incalculably better bills that didn’t survive the political firestorm. But I’ve mellowed a bit in recent weeks. I came to see that there were multiple minority camps: one that favored universal coverage; another that favored the public option; and another (lesser sized) one that favored a health-savings account approach. None of them was able to muster a clear majority. And in that environment, getting this bill done is an astonishing political feat. Bottom line, we will be better off. Just nowhere near as well off as we would could have been.