A Mandate with an Escape Hatch

By 2014, if an uninsured American citizen with enough income refuses to obtain health insurance, the person has a choice to resign from obtaining health insurance by paying a penalty; or, how the Supreme Court majority puts it, a tax.

But this is not the escape hatch I was referring. Of the three arguments of those defending the Affordable Care Act (ACA), also called Obama-care, (1. Inactivity can be regulated under the Commerce Clause, 2. the Necessary and Proper Clause justifies the state interest enacting an individual mandate, 3. failure to obtain health care can be subjected to a penalty) the third argument won out, which is really considered a tax no matter how Congress wished to word it, according to the Court. It denounced argument 1 unconstitutional, which means the government cannot make you buy broccoli and Justice Roberts found no sufficient cause for Obama-care to be necessary and therefore proper. That means, among other things, the individual mandate can still be struck down by the legislature, not with 60 votes in the Senate, but with 50 votes instead. I consider it wise for Roberts to devolve the decision of whether or not the individual mandate is moral to officials who are closer to the people and where the people retain their authority and their freedom to punish their respective representatives. To quote Roberts majority opinion:

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.” (National 6)

This libertarian interpretation (albeit a minority variation in today’s libertarian America) of judicial power hands ultimate responsibility over to the polis. But again, this is not the escape hatch i am referring. With all the complex legal jargon and maneuvering, Justice Roberts simply has handed the ethical decision-making on this particular matter away from the judicial branch, even though arguments 1 and 2 has been deemed illegal. Obama-care has been deemed legal. That is all. I wonder if Roberts was seen washing his hands excessively after he read his majority opinion aloud.

To my knowledge, in 2015, argument 3 (the tax penalty in Obama-care) can still be challenged in court. Justice Roberts might have to get his hands dirty once again.

NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRET HEALTH AND HUMAN SERVICES (aka Obama-care)

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