Who Needs the Constitution?

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Matt Miller makes some excellent points in his health-care brief for Supreme Court. I especially liked this one:

Consider Switzerland's model. The journal Health Affairs asked former Swiss health minister Thomas Zeltner why his country's individual mandate was acceptable to a nation known for ardently defending personal freedom. "That's easy," Zeltner replied. "We will not let people suffer and die when they need health care. The Swiss believe that in return, individuals owe it to society to provide ahead of time for their health care when they fall seriously ill. At that point, they may not have enough money to pay for it. So we consider the health insurance mandate to be a form of socially responsible civic conduct. In Switzerland, 'individual freedom' does not mean that you should be free to live irresponsibly and freeload from others."

This is how Republican reformers talked before Obama endorsed the idea.

Indeed.

Much as I agree with Miller on this subject, I would be even more pleased to find somebody else who believes, as I do, that Obamacare, for all its faults, is (a) a brave and worthwhile reform, far better than doing nothing, and right to include an individual mandate; and (b) unconstitutional (for the reason adduced by the 11th Circuit Court of Appeals: "The individual mandate as written cannot be supported by the tax power"). Perhaps I'm repeating myself, but isn't it strange that everybody who thinks Obamacare is good policy is sure the reform is constitutional, and everybody who thinks it's bad policy is sure it isn't? If you aren't puzzled by that, I think you should be.

Miller resolves the issue by telling the Court, in effect, "We all know the Constitution, as written, is a nullity. Forget what it says, it's what you tell us it is. Here's a good policy. That's all you need to know. Let it stand." Well, all right, but then why have a constitution with enumerated federal powers and a Court to adjudicate the law in the first place? The Supreme Court becomes the unelected Supreme Leadership Council. If they like a policy, it stands; otherwise, it doesn't.

You might wonder what I would recommend policy-wise, given (a) and (b). Obviously, make the "penalty" an explicit tax. Thus, the reform is constitutional. This could have been done in the first place, of course--except that it would have meant a tax increase...

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Clive Crook is a senior editor of The Atlantic and a columnist for Bloomberg View. He was the Washington columnist for the Financial Times, and before that worked at The Economist for more than 20 years, including 11 years as deputy editor. Crook writes about the intersection of politics and economics. More

Crook writes about the intersection of politics and economics.

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