Boston University professors' rectal examination of Obamacare constitutionality stinks
The new law “stabilizes health care financing by making health insurance virtually universal and affordable,” “The mandate thus helps to correct distortions in the health care market in which a significant number of uninsured Americans have consumed significant quantities of health care for which they have not been able to pay.” "Health care is a necessity, something everyone needs and uses. Less than 1 percent of adults have never visited a doctor or other health care professional. However, health care is unlike other necessities—food, water, shelter, and clothing—because, apart from routine care, a person cannot predict his need for health care, and that care is very expensive. " "The most principled reason for objecting to the mandate is that some people believe that the federal government should not have the power to require people to buy a commercial product they don’t want. However, this misses the point that they are already in the market for health care and that health insurance is simply a means of paying for the care that they have used or will use." I love this one:
"The use of health care follows a rough 80/20 rule: in any year, about 80 percent of health care expenditures are spent to treat 20 percent of the population. But, we do not know in advance who will be in that 20 percent." So what? Isn't this premise true of all risks (accident's, fire, murder, health)? That's the point of having insurance in the first place.
The Commerce Clause has been dangerously misinterpreted by Supreme Court precedent, and abused by Congress. Obamacare is wrongheaded for at least three reasons:
1. Legal) The constitutionality of Obamacare is in question. The Commerce Clause was not intended for the federal government to oversee/regulate/mandate all aspects of economic activity. The logical conclusion of the argument used by Obamacare supporters, and by Mariner in the article, is that there is no limit to what Congress can regulate since all human activity affects economic “commerce” to some extent or another – anything not regulated means the feds just haven’t gotten around to it, yet. The Supreme Court once foolishly ruled in favor of regulation even in the case of food production for private consumption, as noted by Wickard v. Filburn, whereby Fliburn was growing more wheat than was mandated by the government in order to keep wheat prices artificially high during the Great Depression. Such cases are then cited to favor more intrusion of government into economic activity.
The actual intent of the Commerce Clause is really quite simple (it’s only 16 words, you know) – to regulate, or ‘make regular’, the rules guiding trade among the states. States were more independent from the federal government back then; as such, rules were established to prohibit states from interfering with the flow of commerce across state lines. This sentiment was summarized nicely by Thomas Jefferson,
“For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature;”
Furthermore, the penalties imposed are not constitutional, since, if the government argues it is a tax, it is neither “apportioned nor uniform.” The government backpedaled and claimed the fine is a civil penalty.
2. Moral) Even if the Commerce Clause retains its modern interpretation, that federal mandates and regulations are warranted when people engage in economic activity, how can this apply when people are not engaging in the specific activity? As I once read by Reason Magazine contributor, David Harsani, “Is NOT doing something the same as doing it?” Now, Mariner et al. wish to define “economic activity” as including non-activity? And by what moral right does one group of citizens force the others to engage in private transactions? And then threaten with fines and jail if they refuse? If I wish to abstain from purchasing anything, shouldn’t I have that right? In this sense, Romneycare might be constitutional, but it is certainly immoral (not unlike the “War on Drugs”).
3. Economic) If Romneycare (2006) is the fundamental blueprint for Obamacare, then the country is sure to see increases in insurance premiums. Romneycare, like Obamacare, has two basic goals (if you’re not skeptical of government, like myself), insuring everyone and reducing costs. But what about those costs? Massachusetts pays higher than average premiums, and the costs are continually rising. In fact, the state released a report stating that between 2007 – 2009, premiums increased at a rate between 5-10% per year, outpacing inflation; deductibles and co-payments doubled in some cases. All this to reduce the uninsured from 6% of the state population, to about 4% (2009; in 2008 it was 2.6%). State expenditures on healthcare have risen by 33% from ~$10 billion to ~$14 billion from 2005-2011, all while the state faces a $1 billion budget deficit for 2012. If Massachusetts can’t contain costs, why should we think the federal government can do any better? Every budget estimate for every federal program has been underestimated, every time. Why would it be different now?
Nix Obamacare. It’s unconstitutional, it’s immoral, and it’s economically stupid.

