Monday, March 26, 2012

New America Foundation: Emily Bazelon & Garrett Epps- 'Health Care & The Supreme Court: What Will The Decision Say About Constitutional Resilience?'

Source:New America Foundation- Emily Bazelon moderating this event.

"Health Care and the Supreme Court: 
What will the decision say about constitutional resilience?

This is an excerpt from the Future Tense "Resilience" event.  In it, Emily Bazelon asks Professor Garrett Epps to discuss the Supreme Court's upcoming decision on Health Care.

The ability to bounce back, to absorb shocks, to persevere, to retain functionality over time, to endure, to adapt, to succeed, to survive, to sustain... so many verbs are conjured up by the term "resilience." Whether we're talking about our bodies, our minds, our communities, our institutions or our natural environment, the R-word provides a conceptual framework for designing a better tomorrow. Please join us for a wide-ranging inquiry on what it means to be resilient and what a resilient future could look like.

Garrett Epps -- @profepps
Professor of Law, University of Baltimore
Legal Affairs Editor, The American Prospect

Emily Bazelon-- @emilybazelon
Senior Editor, Slate" 

I don't mean to sound like a washed up rock singer who only has one line left, but I'm not a lawyer. But looking at this from a non-lawyer, I think the only constitutional questions about the Affordable Care Act (also known as ObamaCare, before it was RomneyCare) is whether the Federal Government has the constitutional right to require Americans to buy a product over the private market, which is what health insurance is, or sign up for Medicaid, if they're eligible for Medicaid. T

The other constitutional question in the ACA being about the Medicaid expansion: can the Feds force the states to expand their Medicaid program to cover low-income, working adults and penalize them if they refuse to do so. 

There really are no other constitutional questions for the Affordable Care Act. Under the Commerce Clause, the Federal Government has the right to regulate commerce in America. Health care and health insurance are both products in America. And under the 16th Amendment to the U.S. Constitution, the Federal Government has to right to raise or cut taxes. And under the ACA, Americans who make too much money to be eligible for Medicaid, but not enough money to afford private health insurance, are eligible for a tax subsidy to pay for private health insurance. 

I'm not a Conservative, not a Constitutional Conservative. I'm a constitutionalist though in the liberal (or classical liberal, if you prefer) sense and if you are looking at the Affordable Care Act in a constitutional conservative sense, I think it's easy to rule that the ACA is constitutional, except for perhaps the health care mandate and the Medicaid portion of the bill. Even if you don't like the law and Congress and the President to repeal the law. 

It's not the job of the Supreme Court to decide on the merits of a law, just the constitutionality of it. So throwing out the whole ACA by the Supreme Court simply because you don't like it, or because you are throwing out the mandate and the Medicaid prevision, wouldn't be constitutionally conservative.

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