I can’t often say I agree with much that any Obamacare opponents have to say about Obama or Obamacare (or, often, most anything else), but I’ll have to agree with Steven Presser says about Obama in his CNN Opinion piece; Obama should have know better than to say what he said about the Supreme Court’s eventual decision regarding Obamacare. Judicial Review *is* an important piece of the governmental pie, but my primary concern is the arrogance of Obama’s remarks, and the gauntlet he seemed to be throwing down. He may as well have said “Go ahead, conservative majority on the Supreme Court, strike down the Affordable Care act. I dare you.”
That said, I think Mr. Presser’s analysis of the status of the individual mandate is faulty. I’m not a lawyer, and undoubtedly know less about the ins and outs of the Law than Professor Presser does, but my logic goes like this:
- There is no question that the government can force you to buy insurance under some conditions. Many states require that you carry auto insurance if you register a car, and home insurance is required if you have certain types of loans that the US Government guarantees.
- The key to whether the government can require you to purchase insurance seems to be that you’re engaged in certain kinds of commercial behavior that the government has interest in regulating.
- The government has an interest in regulating aspects of the health insurance and health care industries.
- Every one (and I mean everyone) will eventually have to engage in commercial behavior in the industry in question.
There should be no concern about the government regulating commerce around healthcare and health insurance; we accept that the can do so around voluntary commercial activity, and (as pointed out elsewhere) both healthcare and, to the degree that you recognize that paying for health care out of your own pocket is a sort of health insurance, health insurance has a special status; no one escapes the eventual need to engage is purchasing health care or health insurance.