RSS Feed MenuRecently, Virginia’s state legislature shocked Washington by brazenly passing a law that (they hope) will “exempt” their fine citizens from the clutches of Obamacare’s most incendiary provision, the uber-controversial “individual mandate”. It is also being reported that as many as 35 states (almost enough for a constitutional amendment’s threshold) are also debating passing such symbolic legislation. As someone who has serious queries about a mandate without either absolute tax credits for compulsory insurance (a conservative solution) or adequate subsidies/a public option (a liberal dream), I am avidly looking forward to seeing the mandate issue hashed out before the Supremes. But one can hardly find a more pathetic, suicidal kamikaze mission than Virginia’s law (and the other possibles in its wake) would be to try that eventual case with.
There is certainly a compelling legal argument to be made – at the very least – that the federal government has never before required people to purchase a private company’s services or face fines or audits, as a legal requirement of U.S. citizenship. (This was even admitted in writing during the Hillarycare debate in 1993-94.) The automobile and homeowners’ insurance arguments don’t wash. If one does not drive a car (such as an elderly senior, or the many residents of Manhattan, Chicago, and San Francisco who use public transit and taxis) or own a home with a mortgage, one is exempt from those mandates. ”Cigarette taxes”, taxes on alcohol and excess energy/gas usage, et cetera, are also based on activity – I must BUY cigarettes, et al, to pay the tax.
The mandate uses the IRS audit principle of “guilty until proven innocent” - I must prove that I’ve bought a policy from Kaiser, Blue Cross, State Farm, Prudential, etc. or I’m in big trouble. It also sets up a chilling precedent: in light of the recent General Motors and Chrysler meltdowns, what’s to stop the government from arguing that if you buy that Jaguar or BMW you’ve always wanted, or go for a Honda or Hyundai (or even a Ford!), you’re taking funds from a “too big to fail” company that affects the entire U.S. economy. Why not penalize you for refusing to buy GM? Under this theory of the law, if the government can effectively decide your whole budget, what you can and can’t “afford” – what’s to stop them? (If a roughly $80K-a-year independent contractor says that with his mortgage jumped 2 points, and his kids in college, he can’t afford health insurance - but he’s “too rich” to qualify for a subsidy until he pays 8, 10, 15 percent of his income in premiums – President Obama’s answer is, “Better call your realtor!”)
This shocking principle might very well make the mandate (or Obamacare itself) so offensive and unprecedented that the Supremes would strike down summarily, especially in light of the McCain-Feingold strikedown. And while liberal judges will almost surely line up behind the mandate, a “wise Latina” like Sonia Sotomayor might conceivably balk at the “one size fits all” social engineering in our diverse society, with virtually no account taken of different states’ and localities’ health situations and demographics.
Conversely, the logic behind Virginia’s law, so to speak, is the old states’ rights saw that the mandate “offends” the Tenth Amendment, that all powers not specifically delegated to the federal government are the province of the states. Of course, the “interstate commerce” clause is certainly an enumerated power — and as every Republican who watches Glenn Beck or Rush Limbaugh knows, healthcare is “1/6th of the nation’s economy!” As that great political philosopher the Wicked Witch of the West might cackle, “Just try selling the idea that comprehensive healthcare reform doesn’t affect interstate commerce – just TRY!”
The “nullification” argument has been a non-starter since Andrew Jackson. From Brown vs. Board of Education to Roe vs. Wade to Lawrence vs. Texas, from anti-discrimination laws to “Americans With Disabilities” to welfare reform to “No Child Left Behind” to the federal income tax itself, there is simply no way that the Virginia law WON’T be overturned. (If it were – just imagine Rick Perry passing a law outlawing income taxes, or Bobby Jindal saying he won’t abide by Roe anymore, using the Virginia nullification as precedent. Wanna bet that even Robert Bork would allow that?)
Worst of all – and most insultingly to real conservatives and moderates – that may be the real reason the Virginia law was passed (and that others are sure to be passed in the coming weeks): NOT to actually overturn the mandate, but to cynically stoke Tea Party and conservative voter outrage when the noble Davids of Virginia are inevitably crushed by the federal Goliaths. Thomas Frank couldn’t have written it any better.
In a private email, our chief David Frum speculated that the strikedown of the Virginia law would be 7-2 or even 8-1, with Thomas the lone holdout, if it ever came before the Court. If anything, I think Mr. Frum was being too kind. The idea that an African-American judge who grew up under Jim Crow – even one as conservative as Thomas – would affirm that a right-wing government in a Confederate state can simply wave away whatever federal mandates it disagrees with, like a model showing off the latest prizes on The Price is Right, is not just improbable to believe. It’s almost impossible.
The individual mandate may be bad law, and may very well be deservedly overturned in court. But the Virginia gambit is just as offensive a law, however well-intentioned it may have been - and is the least, worst hope for judicial redress. Bottom line: If you are opposed to the Mandate or the Obamacare bill in general, then pray that the inevitable Supreme Court case on them won’t be the one based on the law that carries us back to ole Virginny.
If it is, the mandate will just as inevitably be upheld as easily as income taxes, Medicare, and Social Security have been. Slam dunk. And even worse for libertarians and conservatives, the interventionist-government legal theory behind it would no longer be seen as a unique-situation fluke, but become as irreversibly entrenched in law and precedent as Roe vs. Wade and Kelo vs. New London themselves.
rbottoms // Mar 18, 2010 at 12:02 am
Virginia Republicans engage in meaningless display of pique, the world is shocked.
In other breaking news, the sun will rise in the East and set in the West.
SFTor1 // Mar 18, 2010 at 2:10 am
Is the Virginian position that there is no good reason to ensure that people have access to health care? Because it is one of those little luxuries we should be free to choose for ourselves, and if we don’t want health care, that is a cherished freedom we must protect?
What happened to the idea that “Americans have the best health care in the world?” So if I understand correctly, “having” health care is symbolic. It does not mean that you should have access to it. If you are unable to afford it, you “choose” not to have health care, because you are free. And freedom-loving Americans don’t need health care, as long as the “best health care in the world” exists, like a gleaming Duesenberg, within the nation’s borders.
To be “forced” to have health care is an abomination, I suppose. This infringes on your “right” as a red-blooded American to be without. Which you will be if you have ever been sick, or don’t have enough money. Or can’t work because you are sick.
Are there a lot of wealthy Virginians who choose to exercise this “right” not to have health care? Or do they use their freedom and their money to choose to have access? But they could theoretically choose not to, so they are free I suppose.
But health care isn’t.
What happens if you get sick, and need care, but can’t pay for it? Are you still free?
I am still trying to wrap my head around this concept.
Where is my barf bag?
sinz54 // Mar 18, 2010 at 9:19 am
SFTor1: Is the Virginian position that there is no good reason to ensure that people have access to health care?
NO.
The Virginian position is that no American citizen can be compelled by the Federal Government to engage in a form of commerce that he personally opposes.
And the problem with that, as Mr. Davidson points out, is that the Supreme Court already forces us to do such things: A landlord is forced to rent to people whose ethnicity he would prefer to not have around, for example.
If states could individually nullify Supreme Court regulations on commerce, it would destroy much existing Federal civil rights legislation.
Instead of calling it a mandate with a penalty for non-compliance, a better way to have framed the issue is as follows: Every one of us would pay a tax to the Federal Government (that’s the penalty), but we can get a dollar-for-dollar credit on that tax by showing that we purchased private health insurance.
In a single-payer system, you would still have to pay taxes to support it, but you would get no credit for purchasing private health insurance. (That’s why we conservatives fear that ObamaCare is a stepping-stone to single-payer: All a liberal Congress would have to do at some point in the future is make everyone pay that “penalty” regardless of whether they purchased private insurance or not, and ABRACADABRA! PRESTO! Instantly we’ve got a single-payer system! )
So that’s the consistent and elegant way to look at it: It’s taxpayer-supported health insurance with a tax credit if you opt out and get health insurance elsewhere.
Independent // Mar 18, 2010 at 11:15 am
Looks like more than a few states and a few Attys General may be plotting the same strategy.
The Democrats here sound a lot like the tobacco executives in the 1970s when they told a similar set of angry, blood-in-the-water-tracking state AGs to go ahead with all the “tobacco created health care expenses for our state” arguments… that one wasn’t going anywhere either.
According to the most trusted name in news, Fox News, 37 states are considering following VA’s lead. The fed govt is no less a monopoly or guilty party in this as was tobacco a few short decades ago… Obama Care will just squeal on the way to the slaughter, louder.
Independent // Mar 18, 2010 at 11:17 am
And it won’t matte rhow much lipstick the Obami put on the pig; it’ll be squealing all the way through the federal courts and the opposing forces need only find a single federal judge to enjoin it. Alito or Roberts would have when they were on the lower benchs.
SFTor1 // Mar 18, 2010 at 1:59 pm
Independent:
by using derogatory nicknames for the President you are revealing yourself to be a juvenile rectal orifice.
Show proper respect. It is a minimum requirement for calling yourself an American. Barack Obama is the President of the United States. He is a hundred times the person you will ever be. Call him the President, Barack Obama, or Obama for short. Got it, rectal orifice?
“The Obami?????” I don’t even know what that means.
Back to the issue:
I am a liberal, and I don’t see why anyone would have a problem with a person opting out of public health care and substituting it with private health care. A small percentage of high-income people may want to do that, and they should have that option. We need single-payer to control cost for the vast majority of the population, and control cost in the economy as a whole.
Nobody cares what a few rich people do, as long as they otherwise are properly taxed.
Independent // Mar 18, 2010 at 11:32 pm
SFTor1, let’s recall for a second that the highest elected Democrat leader, NancyP, once said of sitting Pres Geo Bush that “he isn’t my president”.
I take her stand on Bush and apply it with vigor to Obama Messiah. Am I somehow wrong to follow NancyBoTox’s practiced lead?
He isn’t my president –anymore than Clinton was or Carter was.
He got into office on the predicate of vote fraud, illegal campaign contributions, lying and deception. For Obama, the ends justified any means necessary… in fact, in Michigan, there’s a radical social justice group from Detroit who thinks of Obama as their mentor and have adopted the name, By Any Means Necessary.
By any means. If that means it becomes politically expedient to toss Bill Ayers or Rev Wright under the bus, you do it. If it means Van Jones goes, you do it. If it means Rahm Emanuel has to go… you do it even if he’s still wearing a towel. If it means you have to look Christian to curry votes –you do it. If that means you have to appear to have executive experience –you claim you’re the head of presidential campaign and hope the voters aren’t listening too closely.
The Obami are the loyal worshipful followers of Obama Messiah who first came to focus when Obama ascended that fake greek temple in Denver and all nearly fell prostrate at his feet. It’s why Mrs Clinton worried aloud about the cult like following that surrounded the O One. Cult. We’ve seen it before with smooth talking, broad smilin’ political animals like Obama.
The Obami are part cult, part adoring of the celebrity pop icon that is the Obama, part near religious worshipers of the false prophet, Obama. He’s not just a product –he’s their favorite drink!
You instruct: “Barack Obama is the President of the United States. He is a hundred times the person you will ever be.”
While I can understand your need to enforce the Chicago Thug way on wayward souls who have not yet taken in the drug that is Obami… I’m hardly willing to submit.
You forget, he’s a man first. He became a God when you raised him up beyond his limitations. I intend he get nailed to the cross in the Nov 2010 elections and then, with joyous good fun, in the General in 2012. He deserves it for the deception. He’s earned it for the presumption he is a God.
Enough mourning in America « Resolute Determination // Mar 23, 2010 at 8:42 am
[...] to the Constitutionality of the legislation based on states rights’ arguments rooted in the 10th Amendment will be successful in the [...]
Making Sense of McDonnell’s Confederate Nostalgia | FrumForum // Apr 8, 2010 at 6:58 am
[...] was little more than a rewind to 1860. (As much as I dislike the mandate, I said in an earlier blogpost that Virginia’s strategy came all too close.) Add in their lingering resentments — [...]
CallDrMatt // Jul 3, 2010 at 4:31 pm
Telly Davidson writes: “the Wicked Witch of the West might cackle, Just try selling the idea that comprehensive healthcare reform doesn’t affect interstate commerce – just TRY!”
It is clear that “doing nothing” is NOT an act of commerce, thus “doing nothing” should not be regulate-able by the Fed. And whether a citizen’s freedom NOT to purchase health insurance affects Interstate Commerce, . . . this question jumps the gun — it skips a link in legal logic!
Even if doing nothing does “affect” interstate commerce, this issue leap-frogs over a prior constitutional question that the Supreme Court has never ruled on: Does the Federal Government have power in the first place, to require individual citizens to purchase a product or service? Can the Fed force citizens to buy health insurance?
To understand the issues and facts in Virginia’s Lawsuit against ObamaCare, I’ve written a detailed summary at my website: http://www.ChangingYourStripes.com — plus I’ve summarized four Supreme Court Decisions that deal with the Commerce Clause.
CallDrMatt