So last night’s “Left, Right and Center” represented a reversion to form. David Frum was in the “Right” chair, and Matt Miller was back, representing the “radical center.” Miller referred listeners to this D.C. Appeals Court decision, which now allows me to understand anything that came up in day 1 of oral argument of the Florida case in the Supreme Court:
Frum, who supports the individual mandate and thinks it is constitutional, was, I believe, president of the local Federalist Society where he went to law school, and I think he went to Yale (no – he went to Yale but he attended law school at Harvard). Frum and Miller were holding out hope that the oral argument was misleading and that the mandate, and the law in its entirety, will be upheld.
I am surprised that the example of auto insurance has never come up in the discussions of ACA I have heard. You have the same insurance problem of adverse selection, free-riders, and so on. The only difference between the auto insurance market and the health insurance market is that it is somewhat less necessary to drive than it is to have a body — but not that different in many parts of the US.
Robert Scheer was trying to maintain that there are no negative externalities from a refusal or financial inability to carry health insurance, but that is clearly wrong. Has he never heard of communicable diseases? And it certainly seems to me that the government at any level, local, state, federal, would be well within its rights to compel people of all ages to have vaccinations, and I have no doubt whatever that the government at all levels would exert this right if it were obviously necessary to the public health. I don’t think the negative externalities from a population not receiving adequate health care has received nearly the attention it deserves in this legal context. I have no patience whatever with the kooks who think that vaccinations are causing autism. The burden of proof is on them, and I am confident that they have not, and cannot meet it.
I now think the penalty for not abiding by the mandate in ACA was not called a tax because it is not a tax, it’s a penalty. As Steph said, had it been called a tax, then the tax probably would have been challenged. The Commerce Clause challenge based upon activity/inactivity seems the more serious one, but if the challenge is upheld I really do think it will be time to think about a nonviolent revolution that looks to a new constitutional order — either a new, more prescriptive constitution, or no constitution. Alternatively, we can wait for 75 or 100 years for different appointees, but that’s a luxury we and the world may not be able to afford under current demographic, ecological, and technological conditions.
I am of the opinion that the “new conservatism” is mostly backlash due to affirmative action legislation and jurisprudence. It wasn’t civil rights legislation per se that made the Right go crazy, it was affirmative action, of which school busing is a kind of subset.