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The ACA and the Constitution


I have some thoughts inspired by Jon Cohn’s article about constitutional challenges to the ACA. The short version is that I doubt that even a scenario where the Supreme Court strikes down the mandate — which I still regard as relatively unlikely — would have the far-reaching consequences that libertarian heroes hope. The reason for this is that a radically reduced federal government is a position that has no real political constituency, and the Supreme Court rarely intervenes in such circumstances. Although there’s still a widespread belief that the Supreme Court is “countermajoritarian,” it tends to reflect the values of political elites. (To borrow Mark Graber’s line, a generation of constitutional scholars discussed the Warren Court as if Barry Goldwater won a huge landslide in 1964.) If pro-Hammer v. Dagenhart sentiments become more than a fringe phenomenon, the Supreme Court might join in. In a political context where even tea party congressmen aren’t willing to name a single federal program they’d favor cutting, there’s not going to be any “federalism revolution” or return to the laissez-faire constitutionalism of the Gilded Age.

In a way, the instructive anecdote Cohn starts with also illustrates the point:

A few weeks ago, I spoke with Hyder at his office, in order to learn more about why he had brought this case. He said his motive was straightforward. He’s opted not to carry health insurance because he doesn’t think the benefits justify the price, and he doesn’t want the government forcing him to do otherwise. Okay, I asked, but what if he gets sick and needs hospitalization? How will he afford those bills? It was a distinct possibility, he agreed, patting his waist and noting that he was a little overweight. But those potential bills would be problems for him and his hospital, he suggested, not society as a whole.

When I told him that I disagreed—that his decision to forgo health insurance meant other people would be paying his bills, via higher taxes and insurance premiums—he politely and respectfully took issue with my analysis. The discussion went back and forth for a while, but soon it became apparent that our differences went beyond the finer points of health care policy, to our most basic understanding of the rights and obligations of citizenship. “It’s a complete intrusion into my business and into my private life,” he told me. “I think it’s one big step towards a socialist society and I’m purely capitalist. I believe in supply-side economics and freedom.”

The guy talks like a libertarian, but note that the punchline isn’t “if I need emergency care, the hospital should refuse to treat me if I can’t pay cash,” it’s “the hospital should treat me and indirectly stick someone else with the bill if I can’t pay.” Tells you what you need to know.

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