Sunday, April 1, 2012

My Closing Arguments On the Affordable Care Act

Now it’s time for my closing argument regarding the Affordable Care Act.

·         I am neither a lawyer nor a judge.  I have never argued before a court and I haven’t read every page of the Affordable Care Act.  I have not studied case law extensively, other than the Business Law class I took as part of my MBA.  But I have one simple question/observation: The only matter the Supreme Court can actually rule on is whether the individual mandate violates the commerce clause.  It does not have the power to strike down the law in total.  To do so would establish precedent that Congress has no power to create laws, which would be unconstitutional.  If the mandate is ruled unconstitutional, it is likely the court will tell Congress to come up with another solution that accomplishes the same result without mandating.

·         The above notwithstanding, citizens cannot avoid the healthcare market.  At one time or another, everybody will participate, this is why the Scalia and Roberts arguments about mandating cell phone use and eating broccoli are lame.  They make great sound bites, but they are pure fallacies. 

·         Many of the same people that are screaming about government intervention into our lives and jeopardizing freedom, are the same people who think it is proper to force women into unnecessary procedures before an abortion, think employers should be able to limit basic health insurance coverage for ‘moral’ reasons, think it is OK for a government to hold people indefinitely without criminally charges, think it is OK to criminalize abortions, think it’s OK to force a school teacher/nurse to question a student/patient’s immigration status, and think it’s OK to deny millions of Americans the right to get married, serve in the military, and vote.

·         Then there’s Justice Kennedy’s statement during oral arguments “And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.”  Has this man been in a coma for the last, well ever?  Changing the relationship in a very fundamental way?  What do you think the Social Security and the Medicare Acts did?  I thought judges liked to use case law as a precedent, not their ideological opinion.  This isn’t a drop in the bucket, it’s a drop in the ocean.

·         Finally, when even the conservative Financial Times believes the Affordable Care Act is the right thing to do and should be upheld, perhaps conservative son this side of the pond should listen:

The court also heard the argument that the entire law should be thrown out if the mandate were voted down. If upheld, the “severability” argument, which says the mandate is inextricably linked to the rest of the law, would amount to an extraordinary judicial over-reach. Out would go the rule that forbids insurance companies from denying coverage to those with pre-existing conditions and which obliges them to insure offspring until they are 27. Both measures are already popular.

The judges should see the law for what it is: a flawed piece of legislation that nevertheless does nothing to transgress the spirit or letter of America’s constitution.

Yes, the legislation is not perfect, but neither are the nine supreme court justices.  Flawed as the world is, the Affordable Care Act, like the Social Security Act and the Medicare Act, is the necessary first step in providing the healthcare that a modern civilized nation provides to its citizens.  We have the greatest medical care capability in the world, why can’t we aspire to have the greatest healthcare system too?

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