Monday, July 2, 2012


There US Supreme Court ruled that the individual mandate is constitutional.  And made absolutely no sense in the process.

Scalia, Alito, and Thomas dissented on the grounds that they despise humanity, but that's to be expected.  Kennedy said something (I'm still reading into his bits).

Then there was Roberts.

First, the mandate is unconstitutional because the commerce clause only regulates activity.  Fine.  That works if we narrow the focus to only the insurance market, in which case a non-buyer is inactive.  However, the whole point of the mandate is that people are not inactive in the healthcare market, of which insurance is only a facet, not truly a market unto itself.  After all, you can get healthcare without insurance, but you'd not get insurance if you somehow were immune to all disease because you'd not get healthcare either.

Then came the "necessary and proper" clause, which essentially says that Congress can do what needs to be done.  It's a bit of a terrifying blank check, but blame the Founding Fathers, not evil conspiracies by politicians.  This was rejected too, on the grounds that the mandate was not necessary, which also demonstrates a remarkable failure to get the point of the mandate.  Well okay, I suppose the mandate isn't truly necessary: Congress could have gone with the more socialist model of a single-payer plan, such as by extending Medicare to all ages and raising taxes to compensate.  But the Court isn't there to debate policy, only constitutionality.

Finally we get to the strange part.   By now it would seem that Roberts isn't a fan of the mandate.  It's regulating inactivity and not necessary or proper.  But... it's a tax.  Or tax-like.  It's taxing uh... something... inactivity, which apparently you can tax.  Even a property tax is a tax on having property.  I have yet to see an "existing" tax in which a person is taxed for existence.  If the tax went directly to the government health programs, then I could see it as being a healthcare tax, a tax on the presumption that you are using, going to use, or at least given the peace of mind from being able to use, healthcare.

I don't mind taxes.  They pay for stuff we need, and also that we don't, but that's not the fault of the taxes.  But this interpretation of the taxing power of Congress makes no sense.  It's not saying that Congress gets to tax and spend and the programs which are taxed and spent are constitutional as well and therefore it's all okay.  Instead Roberts just went with "Congress gets to pass taxes".  That's it.  Congress can pass taxes, without any justification beyond that.  I suppose this is true by a literal and stupid reading of the Constitution, akin to saying that Congress has the power to declare war, so it's okay that Congress declared war on Canada.  But hey, the Court only rules on constitutionality, not policy.

It's impressive, really.  In the years leading up to this (because we knew it was going to get challenged), supporters had to constantly fend off the absurd "broccoli mandate" argument.  Yet, with the way the Court ruled on this, it appears that a broccoli mandate is perfectly constitutional.  I tip my hat to you, Justice Roberts, for having upheld the law I support, but in the almost the worst way possible.  Bravo.

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