I am not weeping — note to John Boehner — over the federal district judge’s ruling this week on the health care reform law.
In fact, I find the whole thing pretty funny — if you don’t count the not-exactly-hilarious notion that tens of millions of people could see their access to health insurance put at risk.
Most legal experts seem pretty confident that the law will hold up when the Supreme Court eventually rules on it. But like most of you — including those who carry their pocket Constitutions — I’m not in a position to effectively argue the limits of regulatory authority as outlined in the Commerce Clause.
I am, however, in perfect position to argue the limits of political hypocrisy. It seems, once again, that there aren’t any.
We begin with “judicial activism” — a term which has come to have no meaning whatsoever. It’s like saying, with a straight face, “It is what it is” and expecting to be taken seriously. “Judicial activism” is used most often by conservatives to suggest that it is somehow wrong for judges to do their job, by interpreting the law. But it’s only wrong, apparently, if liberal judges do it.
Here’s what I mean. It’s “judicial activism” when, say, judges rule that bans against gay marriage are unconstitutional.
It is not, however, “judicial activism” when, say, a Virginia federal district court judge rules that the individual mandates in the health care law are unconstitutional. (For those keeping score, two other district court judges have ruled otherwise. And, as there are more rulings to come, you might want to keep a score book handy).
In this case, opponents of what they call Obamacare — my guess is that, in the end, Barack Obama will be happy if people remember it that way — were looking for any way to overturn what Congress had done against the “will of the people.” The will of the people is another tricky proposition. It seems it’s important to follow this will only in certain situations. If, for example, most people oppose keeping tax cuts for the wealthy, that would be the time your representative sticks with the will of the lobbyists.
The individual mandate is, of course, unpopular. It is a mandate, after all. It was unpopular before. It’s unpopular now. It was unpopular enough that during the 2008 Democratic primary race, Obama campaigned against it.
Obama was against it because Hillary Clinton was for it and because no one likes governmental mandates. I mean, I don’t like office mandates. As a kid, I didn’t like parental mandates. But Obama knows the law can’t work without mandates, and so, he changed his mind (which is a nice way of saying he didn’t really believe what he was saying when he opposed it).
It’s simple, really. You can’t mandate that insurance companies cover everyone — even those with pre-existing medical conditions — unless everyone enters the pool. Otherwise, people wouldn’t sign for up for insurance until they got sick, and the whole system falls apart. Believe me, or I’ll send an insurance agent to explain it to you.
So Obama went with the individual mandate. He wasn’t alone. Back in the day, individual mandates were a Republican concept. Yes, I know. That seems, um, counterintuitive, given that so many Republicans now say it’s unconstitutional.
Take Utah Sen. Orin Hatch, who described the ruling against mandates as “a great day for liberty.” Hatch went on to say, “Liberty requires limits on government, and today, those limits have been upheld.”
He said this even though he had co-sponsored health care legislation in 1993 that included — yes — an individual mandate. As Steve Benen wrote of Hatch on his Washington Monthly blog: “Was he against liberty before he was for it?”
Benen points out others who have at one time or another endorsed an individual mandate, including Nixon and Bush Senior and John McCain and Mitt Romney and Chuck Grassley and Lamar Alexander and tell me when you want me to stop.
For Romney, whose Massachusetts health care plan when he was governor included an individual mandate, this controversy is a little inconvenient. Romney, looking to another presidential run, has argued that it’s fine for states to have the mandate. But if Obama and the federal government do it, it is, said Romney’s spokesperson, “an unconstitutional power grab.” Still, I’m wondering if Sarah Palin thinks Romneycare is such a good idea.
This isn’t about the Constitution, of course. It’s about politics. And, as we know, the politics can change.
What would happen if, in fact, the health care law were ruled unconstitutional by un-activist judges? Suddenly, your 26-year-old kid is kicked off your insurance policy, and the doughnut hole comes back into play, and your too-skinny baby doesn’t qualify for care, and your too-chunky baby doesn’t qualify for care, and lifetime limits are back in place. It’s just you and your insurance company all over again.
And without the individual mandate and without subsidies for insurance costs, many of those uncovered by insurance would remain uncovered. And the reasons for reform — like, say, out-of-control medical costs — would be just as evident as they were before the protracted health care fight when (remember the will of the people?) most Americans actively wanted reform.
Mike Littwin writes Sundays, Wednesdays and Fridays. Reach him at 303-954-5428 or mlittwin@denverpost.com.
