Tuesday, March 27, 2012

I've been listening to selections from today's SCOTUS hearing on the constitutionality of the individual mandate in the Affordable Care Act, ironically named because it is increasing the costs of health care and insurance. I've heard conservatives crowing and liberals mourning over the apparent views expressed by the justices. I only wish I could feel this sure of my own impressions. Judges can be tough and still rule in your favor. We haven't heard their closed discussions, nor shall we ever, and their published opinion isn't due for 2 or 3 months. Personally, I don't view this as regulation of commerce, because it does more than "regulate", it dominates, commands, increases costs and extends federal force to mandate a certain type commerce. The problem I have with it is that it burdens commerce in an unconscionable degree. The argument that this law is necessary to solve the problem of free riders seems disingenuous in light of the extensive mechanisms for reviewing and dictating the coverages offered and eventually the costs or availability of what sorts of healthcare in the U.S. I've always thought the expansion of the commerce clause as the basis for wide ranging federal intrusions in private activities and property was a patent legal trick. The clause originally was clearly to promote commerce between the states without interference by state tariffs and taxes. This was so clear that the Department of Commerce had practically no activities other than overseeing federal tariffs until Herbert Hoover enlivened it somewhat and the FDR and subsequent administrations essentially expanded federal control over the entire economy of the country. Indeed the goal seems to be not to just regulate but to perfect the activities it oversees in the minds of the bureaucrats, who see it as part of reason for being to discover and create new duties for themselves. That is where we went wrong and the courts have been too timid to challenge these dubious precedents. Liberals accuse those who propose revisiting these issues of being "activists" when they know that when conservatives use that term they mean using judicial power to expand and extend the law beyond its current bounds whereas they take it to mean returning to the status quo ante current these silly expansions. One thing that always annoys me by these arguments is that they take place in an environment that is already absurd to begin with, like Wickard v. Filburn.


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