Writing at National Review’s The Corner blog, Yuval Levin dissects the op-ed response from Attorney General Eric Holder and Secretary of Health and Human Services Kathleen Sebelius to the federal judge striking down the individual mandate in the federal health care law. Like us, Levin can find no legal or constitutional argument in their Washington Post column, “Health reform will survive its legal fight,” just a weak case made on policy grounds.
Their argument, in essence, is that the government has the right to do anything it wants to in the health-care arena because all human beings get sick, and their getting sick can have economic consequences. The choice of some not to purchase insurance means that when they get sick they might incur some costs that would have to be shouldered by others. “For decades,” Holder and Sebelius write, “Supreme Court decisions have made clear that the Constitution allows Congress to adopt rules to deal with such harmful economic effects.” And the way the new health-care law would “deal with” such harmful effects is to make it illegal to make the choice not to purchase insurance. Simple.By the same logic, of course, you might argue that the government can require each of us to exercise every day and eat our vegetables. Our choice not to do so has grave economic consequences, after all, and under Obamacare, those consequences will be borne by our fellow citizens to an even greater degree than they are today.Holder and Sebelius offer an unusually revealing glimpse into the mindset of the left today. Every public problem is understood to be ripe for federal intervention, the intervention is to take the form of mandates to simply make different “choices” that better comport with what policymakers want, and doing what you are told by the government is the new definition of individual responsibility. And for all of this to pass constitutional muster, all you have to show is that the end you’re pursuing is a material end, since the Commerce Clause says that addressing any problem with an economic component is a proper end of government and the Necessary and Proper clause says that such ends justify all means.
For more on the legal arguments, see Heritage Foundation, the Foundry, “Judge Rules Obamacare Mandate Goes Beyond Letter and Spirit of the Constitution.”