I don’t usually go to sites like AmericanProgress.org, which probably isn’t surprising given my mostly libertarian / conservative political views. But I recently happened upon an article at that site by Ian Millhiser, claiming that “it is absolutely clear that the health reform bill survives constitutional scrutiny,” that it was “clearly erroneous” to allow Virginia Attorney General Ken Cuccinelli’s lawsuit against the law to proceed, that the lawsuit is “baseless” and “wholly without merit,” and that the decision “sadly allows him to continue to waste taxpayer dollars on this frivolous lawsuit.”
I disagree with these claims, to say the least. But there are two arguments in particular that Millhiser makes that I would like to respond to.
First of all, he quotes Justice Antonin Scalia, who once said, “Where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.” According to Millhiser, everyone agrees that it’s constitutional to ban insurance companies from refusing coverage to people with pre-existing conditions. If this happened but there was no individual mandate requiring people to buy insurance, then only sick people would buy health insurance, and prices would rise. I’m sure everyone doesn’t agree that the pre-existing conditions law is constitutional, but I’ll give him these first two points.
I disagree with Millhiser and Scalia, however, that if Congress has the right to pass a law, it has the right to do whatever it takes to make that law effective. Congress has the right to defend America from foreign invaders, but it doesn’t have the right to institute a draft, in my opinion, even if a draft were necessary for a strong military. Congress has the right to ban the hijacking of airplanes, but in my opinion, it doesn’t have the right to force people to take their shoes off and go through strip search machines. Individual rights come first, and the government is never justified in taking away people’s freedom, even if that is necessary to make a law effective.
Second, Millhiser claims that the individual mandate is equivalent to prohibiting businesses from using racial discrimination against potential employees or customers, since these both involve requiring people to engage in economic activity. This comparison is completely off base.
Banning segregation affects people only if they choose to own or manage businesses, and it affects them only in their role as a business owner or manager, not as a private individual. Additionally, it does not require anyone to engage in economic activity. It simply says that if someone wants to run a business, they must accept all customers regardless of race, and not use race in hiring decisions. Everyone still has the option of not running a business.
The individual mandate, however, tells people that they must use their money to buy health insurance. It tells people what to do with their own, private money that they have earned, and it applies to everyone.
So anti-segregation laws and the individual mandate are vastly different. One applies only to people who choose to run businesses and applies only when they are acting in their professional capacity. The other applies to all people in their role as private citizens. It is completely reasonable to find the former constitutional but not the latter.
