At the time that decision
was rendered, those arguments were taken quite seriously.
Discrimination on private property was "private," it was argued, even
when that property was open to the public; unless the owner chose to
involve the property in interstate commerce, Congress was overstepping
the Commerce Power in trying to regulate it.
Fortunately for
us all--including the people, black and white, of the South--the Supreme
Court rejected this argument and sustained the Civil Rights Act of
1964. That Act, more than any other single piece of legislation or
court decision, is what made the United States a single, prosperous,
unified market. No one (except Rand Paul), looking back, can muster any
real regret that the Ollie's Barbecues of the nation were compelled to
assist in their own success. And few people today would seriously argue
that a local business that discriminates is somehow not affecting
commerce.
Now the argument is advanced that the individual who
chooses to do without insurance for his or her family is making a purely
private choice, like not liking Brussels sprouts. "Those who fall under
the individual mandate either comply with it, or they are penalized,"
wrote Judge Roger Vinson in the decision of the Florida court. "It is
not based on an activity that they make the choice to undertake."
One
can agree with Judge Vinson up to a point and still believe he got the
issue completely wrong. The tax penalty imposed by the new legislation
on individuals who refuse to insure their families really isn't based on
something most of them can choose to do or not to do. It's based on
something they almost certainly do not, and probably cannot, refuse to
do: consume health care services. No matter how thrifty and antisocial
any of us may be, no matter how devoted to homeopathy and Yoga,
eventually virtually all of us will end up in an emergency room,
hospital, or hospice. Even if by extraordinary effort we prevail on
others to stand by and allow us to bleed out on the rumpus-room floor,
we usually cannot convince them, no matter how earnestly we plead, to
let our children die; state law will require they be treated. And
someone will pay the cost. That you were "inactive" in getting them the
care your children require should not exempt you from being the one who
pays their bills.
Before health reform opponents decided that
health care is not commerce, they used to point out that health care
consumes one-sixth of our gross domestic product. The argument that we
aren't affecting commerce is like the argument that a segregated Ollie's
wasn't influencing commerce. Of course it was; of course we are. The
only real issue, as the government has pointed out, is how and when we
will pay for the services we will consume.
To deny Congress
the power to regulate that impact on the ground that the individual
doesn't "choose" to have it is in essence to substitute let's-pretend
for grown-up economics. When the Constitution was ratified, a certain
number of Americans really exist outside interstate commerce. They
raised food crops for themselves, wore homespun clothing, used no "cash
money," and often never ventured more than a few miles from where they
were born. Had George Washington descended on their cabins brandishing
mandatory insurance, they would have had every right to question his
constitutional warrant.