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Editor’s note: Michael Ackley’s columns may include satire and parody based on current events, and thus mix fact with fiction. He assumes informed readers will be able to tell which is which.
We have an existentialist White House, and Judge Roger Vinson’s decision holding Obamacare unconstitutional has slapped down its view that inactivity is, in fact, activity.
The White House Blog called the decision “a plain case of judicial overreaching” and trotted out five pro-Obamacare lawyers to attack Vinson. This is a big “so what?” You easily could find five or more anti-Obamacare attorneys to advocate Vinson’s position.
Fortunately, the mediation of folks who append “esquire” to their names is unnecessary. You can read Vinson’s 78-page opinion for yourself. Here’s a Web address where you can find the entire document.
The judge’s prose is literate, temperate and scholarly, spiced with quotes not only from case law but also from historical documents like the Federalist Papers and the letters of Thomas Jefferson.
It’s a joy to read, but it put the Obama administration to be into a tizzy. According to the White House blog (your source for the new civility), the ruling threatens “all of the new benefits, cost savings and patient protections that were included in the law.”
Benefits fantasy aside, the blog does get to the nub of the issue. That is Vinson’s holding that Obamacare’s “individual mandate” that everybody buy health insurance exceeds Congress’ power under the Constitution’s “Commerce Clause.”
The clarity of White House argument is stunning: “Those who claim that the ‘individual responsibility’ provision exceeds Congress’ power to regulate interstate commerce because it penalizes ‘inactivity’ are simply wrong.”
Well, there you go. One is tempted to let this Olympian pronouncement stand alone, but let the blogger proceed: “Individuals who choose to go without health insurance are actively making an economic decision that impacts all of us. People who make an economic decision to forego (sic) health insurance do not opt out of the health care market. As Congress found, every year millions of people without insurance obtain health care they cannot pay for, shifting tens of billions of dollars in added cost onto those who have insurance and onto taxpayers. There can be no doubt that this activity substantially affects interstate commerce, and Congress has the power to regulate it.”
Obviously, the blogger is steeped in Jean-Paul Sartre, who, with rare clarity, said something along the lines of, “In choosing not to choose you are, in fact, choosing.”
It is easy to believe Vinson was tempted to snicker at the idea that “inactivity” is “activity.” Instead, he wrote soberly, “If (Congress) has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting – as was done in the act – that compelling the actual transaction is itself ‘commercial and economic in nature, and substantially affects interstate commerce,’ it is not hyperbolizing to suggest that Congress could do almost anything it wanted. …
“If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power’ … and we would have a Constitution in name only.”
The judge goes on, “Because Congress found in the Act that the economy loses money each year ‘because of the poorer health and shorter lifespan of the uninsured’ … it would seem only logical under the defendants’ rationale that Congress may also regulate the ‘economic decisions’ not to go to the doctor for regular check-ups and screenings to improve health and longevity, which, in turn, [are] intended and expected to increase economic productivity.”
(Given government’s efforts to regulate everything from fat to salt, it is evident that some lawmakers would like to impose just such regulations of individual behavior.)
Vinson analogizes that if wheat prices fell too low, Congress could increase demand by “mandating that every adult purchase and consume wheat bread daily,” because “non-consumers of wheat bread adversely affect prices in the wheat market.”
The jurist also disposed of the government’s argument that without the individual mandate, the act itself will produce “serious negative consequences.”
Under the administration’s perverse logic, Vinson argued, “Under such a rationale, the more harm the statute does, the more power Congress could assume for itself under the Necessary and Proper Clause. … Surely this is not what the Founders anticipated, nor how that Clause should operate.”
The beauty of the Constitution is that the document itself and the reasoning behind it are set forth in pellucid prose by the Founding Fathers. Anybody of reasonable intelligence can understand it. The same can be said of Vinson’s decision. It’s recommended reading for all Americans.
However, if you perceive inactivity as activity, you may have a future in the Obama White House.