I want to comment on something I saw on the CBS Evening News last night, but first I'll give my quick thoughts about the broader ACA/ObamaCare constitutionality question. My learned brother has a post at Greg Sargent's WaPo blog, essentially arguing what I have long believed about the constitutionality of the mandate (I don't believe we've ever discussed it, just happened to reach the same conclusion seperately), and since he's more learned than I on such things you should take a peek there.
I have taken this issue seriously for the past six years or so, since it came up in the context of the Massachusetts reforms. The constitutional question was different for that, but people were already raising the question of whether it could fly at the federal level -- and that question became clearly pertinent after Obama won the 2008 election, and Ted Kennedy began assembling a team to guide the federal version of the law.
I am convinced that the mandate is constitutional, and that it's not a close argument -- although I am equally certain that the Supreme Court justices will find their own reasons to come down on the side of their choosing. To me, there is no question that the health care industry qualifies under the commerce clause as it has long been understood; and there is no specified limitation (for instance, in the Bill of Rights) that the mandate runs up against. That leaves the issue entirely within the "necessary and proper" clause, and as my brother suggests, there's no good reason to think that the clause allows, for example, all the New Deal programs but not this. I would go further; I'm no Constitutional scholar by any stretch, but I took just enough of it in college to be dangerous, and one of the cases we covered was McCullough v Maryland way back under John Marshall, who declared in that nearly 200-year-old decision that the necessary and proper clause is an enumeration of Congressional power, not a limitation on it. And I would point out that, as I understand it, Gary Sampson was put on death row here in Massachusetts because Congress found it "necessary and proper" in 1994 to "regulate Commerce... among the several states" by federally outlawing murder commited in the act of carjacking. So, I'm a little unmoved by the sudden concern for the terrifying possibility of the feds forcing Sampson to buy broccoli.
Anyway, the CBS Evening News last night did a nice little piece about this nurse in Houston who runs a clinic out of a strip mall for people who have no insurance and need some medical attention. For example, a woman brought in her nine-year-old daughter with a large wooden splinter in her foot; taking the child to a hospital would have cost roughly $900, a forbidding sum.
This aspect of the problem gets talked about a lot lately in the constitutional context, making the point that this woman and child are, ultimately, taking part in the commerce of health care whether they are insured or not. Which I think is obviously true, although in my opinion an unnecessary argument.
But my point is the broader one of why it is very much necessary and proper for the federal government to come storming in and strong-arming the states into participating in a nationally directed health care program.
Roughly one of every four Texans is without health insurance, the CBS News report notes. I can add some additional figures. Roughly one of every five children in Texas is uninsured -- some 1.5 million of them. More than half of those are under the age of 12.
So, hundreds of thousands of young children, in that one state alone, are stuck through no fault of their own in situations where they have little or no recourse when they have a large wooden splinter in their foot, let alone if they end up with an infection as a result, or the million-and-one things that can happen to a child. Hundreds of thousands of young children, effectively barred from medical attention. In that one state alone.
One of the main reasons our idea of federal power has steadily expanded over time in this country is that it repeatedly becomes apparent that some states can't or won't fix some grotesque unfairness. Mitt Romney can go around saying, as he does, that each state should come up with their own best approach to covering the uninsured -- and he might be right. But that's what people said in 1993 over "HillaryCare," and guess what -- the rate of uninsured children has barely changed in Texas in the 20 years since then. How long do we want to wait? How many American kids have to hope they don't get that infection in their foot? How many hundreds of thousands of young children without meaningful access to health care will it take before Texas does something about it?
I have no idea where the justices will come down on the constitutionality issue. I just want people to back up and remember that when jackasses yap about the potential broccoli-gestapo tyranny that might in theory stifle the liberties of those handfuls of hypothetical Americans who wish to live free of health insurance, there are in reality millions of American children who, through absolutely no fault of their own, are in fact systematically denied access to basic health care every day.
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