George Will wrote a terrible column this week about the constitutionality of the health care "mandate."
I'm afraid it hasn't done anything to convince me I was wrong months ago when I argued the mandate is self-evidently legal (as long as we keep politics out of the judgment). Nothing of substance has changed since then.
Will should really be ashamed, not just of the arguments he makes here, but of the way he makes them.
First, ashames for adopting the shibboleths of the extreme right wing. It is as wrong for a supposedly respected columnist to refer to the health care bill passed last year as "Obamacare" as it is to refer to the estate tax as the "death tax." The term is, of course, intended to color people's opinion of the law by subtly associating it with something they don't like -- is it Obama personally, Democrats as a group, or maybe just black people? It's tempting to use this shorthand, but don't, if you're serious.
"Obamacare" isn't accurate anyway. The bill as we see it was shaped by a thousand forces, including extremists of the left and right, the health care "industry," and countless others. I believe we would see a very different product if the bill had been drafted by the White House and passed without change.
Second, shame again for failing to note that the whole "universal mandate" concept was proposed originally by Republicans, the staunch defenders of the Constitution as they interpret it. Are we to believe that Republicans purposely suggested an idea that either they knew to be unconstitutional, or that they now have studied again (in light of what -- all the changes that have been made in the Constitution over the past 25 years?) and completely reversed their opinion? I don't buy it, George, and you shouldn't either. It's evident that the current Republican objections to the legality of the "mandate" are motivated strictly by political considerations.
Shame again for perpetuating the red herring that only the interstate commerce clause of the Constitution can provide constitutional underpinning for the mandate. Personally, I like the "general welfare" clause, which provides everything that's needed.
The worst effect of taking the constitutionality argument seriously is that it puts the Supreme Court in the position once again of adjudicating a political issue. With its legitimacy already cast in shadow by other decisions, the court doesn't need to get embroiled in another divisive issue that has little to do with law, and which will be controversial no matter which way it decides.
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