The Left is in hysterics over the prospect of the Supreme Court ruling Obamacare as unconstitutional. The court makeup is currently four consistent conservatives (Alito, Scalia, Roberts, Thomas), two consistent liberals (Breyer and Ginsburg), two recently appointed judges anticipated to be liberals (Kagan and Sotomayor), and then the flip-flop vote of Kennedy. Naturally all eyes are on Justice Kennedy. He was very critical during the court hearing making the liberal court watchers rage.
I actually took the time to listen to the hearings via mp3 recordings available online (Monday and Tuesday). Now, I didn't listen to every minute or understand all the lingo, but I have some observations based on what I heard that are evident to any critical listener willing to take the time to listen to the arguments.
First, the court has been increasingly tolerant of a very liberal reading of the commerce clause for at least a century. This is not news. What is relevant here, is an observation that Justice Ginsburg made regarding Social Security. She noted that it is "constitutional" which most conservatives and certainly any strict constitutionalist would object to. But, from the perspective of the court, it is constitutional. Justice Ginsburg noted that Congress required all workers to be enrolled in Social Security to subsidize the older recipients. Obviously, enacting a program like Social Security without existing funds requires a subsidy--so that is what happened. All workers were required to contribute even if they didn't want to.
How is this relevant to Obamacare? Well the required Social Security subsidy was required to fix a problem observed by Congress. Essentially it was pragmatically required and subsequently given the constitutional blessing by the Supreme Court. The Department of Health and Human Services (HHS) argued that Obamacare is needed to resolve the healthcare crisis in our country.
It is evident that the crux of the argument concerning the mandate and the tax/penalty for not purchasing a qualified health plan revolves around the uninsured and the burden they place upon the government and the healthcare system. Following the logic of the HHS and the need to resolve the financial burden the uninsured place upon the "system" takes us to Obamacare. This is a critical point--the logic of Obamacare already exists in our current healthcare system.
When the government began interfering in an otherwise free-market system, unintended consequences resulted. The unintended consequences have now necessitated that the uninsured become insured. The mandate resolves this problem along with the corresponding tax.
So the problem is not Obamacare. The problem is the government's involvement in healthcare. If the government is to be involved in the healthcare industry, as they are, and have been for a long time, the government must take measures to reduce costs. This is why so many are concerned about death panels. Death panels are the natural consequence of the government's interest in cost containment.
Whether or not Obamacare is ruled unconstitutional later this year, the logic of it is already in the system and the problem of uninsured in our current system must somehow be resolved. The United States does not now possess the moral character required to state the real problem nor to trust in a free-market solution. What this tells me is that if Obamacare is ruled unconstitutional, the fight is not over. Something like Obamacare will, barring some sort of national revival, return and be ruled constitutional if any fight is even required.
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