If the Constitution Is a Living Document

Then we should expect it to be imperfect, like all other living things.  I think we could do a world of good for our mental health if we simply recognized that in a very small number of cases, the Constitution is simply not crystal clear on what is permissible and what is not.  A subset of those cases make their way to the Supreme Court, and the Supreme Court basically acts as a super-legislature.  And, along two dimensions, this week’s ruling on the Affordable Care Act is a fine piece of super-legislating by Chief Justice Roberts.

The first is the question of a mandate to engage in commerce taken separately from the way it is enforced.  There is no way that I want the federal government to have that power.  That is a very different power from the power to regulate commerce conditional on an individual choosing to engage in commerce.  The question of law has nothing to do with the pigsty that is our method of delivering and financing health care to individuals at the margins of the system.  Regulating and requiring commerce are two different things.  I applaud Chief Justice Roberts for the decision to keep them distinct.

The second is the question of whether what is being legislated in the ACA with regard to enforcement of the mandate is something out of the ordinary that should be forbidden.  As I have written before, if paying higher taxes in the absence of favored behavior is not permissible, then the tax preference for IRAs and 401(k) contributions is not permissible.  Neither is the home mortgage interest deduction.  The so-called mandate is no more of a mandate than the mandate to contribute to a pension plan.  If you do it, you pay lower taxes.  If you don’t do it, you pay higher taxes.  I applaud Chief Justice Roberts for simply calling it what it is and acknowledging the difference between mandating behavior and simply taxing the opposite behavior.

So where are we today?  Basically, the same place as we were after the Senate passed the bill in late 2009.  Here are my reactions at the time.  Going forward, Governor Romney would be a fool to expend political capital on trying to repeal the main pieces of the law if he should become President.  He won’t have the votes in the Senate to make any progress, and there are welfare-improving elements of the law (particularly with regard to pre-existing conditions).  Should he have the opportunity as president, he should focus on the cost of the additional health care that the federal government is now obligated to support.  It won’t take him long to figure that out, regardless of how the campaign plays out.

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