The U.S. Supreme Court has decided to accept one of the appeals addressing President Obama’s health care statute, and thereby has set the stage for one of the most anticipated legal rulings in years.
In its order accepting the case, the Supreme Court identified four issues for the parties to brief and set aside five-and-a-half hours for oral argument. Five and a half hours! It’s an extraordinary amount of time, but why not? The issues presented are titanic and unprecedented and could have far-reaching consequences. Can the federal government require everyone to buy insurance? If not, should the entire statute fall? Should the Supreme Court even decide those issues on their merits, or should it wait for the law to be fully implemented?
Many people will focus on the political impact of any Supreme Court ruling on the health care statute, but I think the legal issues are of the most interest. In many ways, the statute tests the outer limits of Congress’ power under our Constitution — if in fact there are any limits left. The Supreme Court may well decide that issue come June.
Both sides to a lawsuit — the Department of Justice in favor of the law, and 26 states and the National Federation of Independent Businesses in opposition — have asked the Court to accept an appeal and decide whether the law should be upheld or struck down as unconstitutional
How to do so? First, by reducing “wasteful subsidies and erroneous payments,” cutting “spending on prescription drugs by using Medicare’s purchasing power to drive greater efficiency and speed generic brands of medicine onto the market,” and working with governors “to demand more efficiency and accountability from Medicaid.” Next, the government will “change the way we pay for health care” with “new incentives for doctors and hospitals to prevent injuries and improve results.” Finally, “we will slow the growth of Medicare costs by strengthening an independent commission of doctors, nurses, medical experts and consumers who will look at all the evidence and recommend the best ways to reduce unnecessary spending while protecting access to the services that seniors need.” These initiatives, the President said, will save $500 billion over the next 12 years. And if those savings don’t materialize, “then this approach will give the independent commission the authority to make additional savings by further improving Medicare.”
The clear implication of that passage is that promising savings from eliminating “waste, fraud and abuse” is not a serious approach to solving budget problems. Yet isn’t that all that the President’s health care approach does? Look again at the President’s proposed approach, and you’ll see plans to eliminate “wasteful subsidies and erroneous payments” (end waste), to demand more “efficiency and accountability from Medicaid” (prevent fraud), and to “improve results” while “reducing unnecessary spending” (avoid abuse). It’s as if the two parts of the speech were written by two different speechwriters — or as if President Obama thinks that, just because he is the one making the proposal, the tired “waste, fraud and abuse” mantra has actual validity this time.
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So, was the House vote a waste of time? I don’t think so. By voting to repeal the “health care reform” legislation, the Republican majority was fulfilling a campaign promise. We should applaud politicians who do so, not condemn them. The general public would have a more favorable view of politicians generally if more politicians actually tried to keep their promises. By acting so promptly, the Republicans are demonstrating that elections have consequences. And, of course, you never know whether political pressure will build on the Senate to consider some form of repeal legislation. If Democrats in the Senate consider the legislation to be such a great success, why should they duck a vote on its proposed repeal?
When you are in the moment, it is difficult to assess what the ultimate judgment of history will be. I doubt that many Americans would put the current Congress up among the great Congresses of the past, however. After all, voters just gave the boot to many of the Representatives and Senators who passed the legislation Reid touts, and Congress’ approval rating is 
Judge Henry Hudson concluded that the individual mandate “exceeds the constitutional boundaries of congressional power.” He found that the commerce clause, which gives Congress the authority to regulate interstate commerce, does not permit Congress to regulate a person’s decision not to purchase a product. Although there are other court rulings that have upheld the “health care reform” legislation, Judge Hudson’s decision is significant because it reflects an interesting approach to skirting the broad powers afforded Congress through the commerce clause. In effect, Judge Hudson is saying that if individuals choose not to purchase a good or service they are not engaged in commerce, and therefore they necessarily are beyond Congress’ regulatory power under the commerce clause.
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I’m sure supporters of health care reform have lots of rationalizations for the landslide in Missouri — it was a special election, Republicans were more motivated to go to the polls, serious people understand that ballot issues aren’t going to decide the matter and therefore we shouldn’t pay attention to the results, etc. — but I think the Missouri election result has to be viewed as having some significance.
I don’t use indoor tanning salons and can’t imagine doing so — but I question the underlying concept of the “tanning tax.” Do we really want to get into the habit of taxing what the federal government considers to be risky behavior? Should sports cars and motorcycles be taxed at higher rates than sedans? Should mountain climbers, skydivers, and participants in extreme sports should be taxed more heavily than couch potatoes? We are moving beyond “sin taxes” on alcohol, tobacco, and gambling to a new realm of governmental efforts to modify human behavior — and I am not comfortable that the government is well-situated to make those kinds of judgments.
