Tuesday, June 26, 2012
I'm not an attorney, and I will resist the urge to speculate on what the
Supreme Court ruling on ObamaCare will be this Thursday, but I think it is
worth noting that the complexity of the law might make the implications of that
ruling, whatever it is, less than obvious. In that vein, I found that a column
by Jonathan Chait, who supports the law, offered some useful perspective:
How much of this quarter of the law the Court decides to cut out is the guessing game. In ascending order, the Court might:I would be pleased if the mandate gets struck down since that presumably means that the Court at least sees some limit in the applicability of the misuse of the Commerce Clause to ram central planning down our throats. That is something that Chait, colorfully at first, admits is significant, and it would be a major victory. As he explains later on:
The last option -- nuking the entire law, including parts that don't require the mandate in any way -- is the hardest to imagine by far. If the Court decides to toss out the mandate, options two through four will hinge on how it decides to address the hole it blew in the law, and the justices spent a lot of their deliberations seeming to ponder this.
- Leave it all in place.
- Technically eliminate the mandate to buy health care while leaving in place the fine for not having health insurance. (Essentially upholding the fine as a tax while technically eliminating the requirement.)
- Eliminate the mandate, and the fine, but leave in place the regulations that insurance companies not discriminate against people with health risks and the subsidies for buying insurance.
- Eliminate the mandate, the fine, insurance regulations, and the subsidies.
- Nuke the entire law.
Striking down the mandate would be a huge deal legally, because it would signal the Court is prepared to resume its Gilded Age function as a kind of right-wing GOP super-legislature, wantonly tossing out laws that offend laissez-faire orthodoxy.Nevertheless, I agree with him that the whole law being struck down is very unlikely. Even if it were, the government is already too involved in medical care, not to mention many other parts of our economy.
At best, what advocates of capitalism can hope for is a favorable ruling that buys us time to capitalize on a valuable precedent, i.e., an opportunity to turn the tide on the growth of the entitlement state. I'd be very happy for that, but I'll indulge in neither triumphalism nor despair come Thursday, any more than I'll waste time speculating today.