ObamaCare argument: Two wrongs make a right

“’To make all laws which shall be necessary and proper’ — or, in other words, to make all such laws which the Congress shall think necessary and proper — for who shalt judge for the legislature what is necessary and proper? … But to the question — without force what can restrain the Congress from making such laws as they please? What limits are there to their authority? I fear none at all.”

   — An Old Whig, Anti-Federalist Papers No. 44

Most of the criticisms of the Affordable Care Act, ObamaCare as it is pejoratively and permanently labeled, have centered around the Commerce Clause of the Constitution and whether Congress under its powers to regulate interstate commerce may force a citizen to purchase a certain good or service in the open market.

Is inactivity a commercial act?

Could Congress require citizens (excuse me, subjects) to exercise regularly and eat their vegetables?

But a bit less examined is the bizarre contention of the administration’s attorneys, as exhibited in the case before Florida federal Judge Roger Vinson and now in front of the 11th Circuit Court of Appeals in Atlanta, that a positive outcome under the Necessary and Proper Clause is created by a double negative.

The argument goes: Congress has the right to ban “discrimination” by insurers who refuse to cover or charge higher premiums to those with pre-existing conditions, but, since this tends to put insurers out of business because people would only buy insurance when they become ill, therefore Congress under the Necessary and Proper Clause — which gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers …” — has the power to require all people to purchase insurance.

Neal Katyal, acting deputy solicitor general, told the 11th Circuit three-judge panel, “Because what Congress found was that you couldn’t ban pre-existing condition discrimination, couldn’t have guaranteed issue and community reform provisions, without a minimum coverage provision. They have eight states that tried to do this and ban these forms of discrimination.”

A judge interrupted and pointed out that insurers simply left those states.

To which Katyal replied, “Precisely.”

He later added, “I think it would be a deep, deep mistake for this court to read some lines from a CBO report that says you can solve some of the problem through other mechanisms because Congress found specially you couldn’t, that you couldn’t solve the bulk of the problem, the pre-existing condition discrimination without, coupling it to the minimum coverage provision.”

Like the Old Whig, Thomas Jefferson took a dim view of the Necessary and Proper Clause powers. In his book “The Citizen’s Constitution,” Seth Lipsky noted that Jefferson called it “the sweeping clause” and quoted from a Jefferson letter sent in 1800:

“Congress are authorized to defend the nation. Ships are necessary for defence; copper is necessary for ships; mines necessary for copper; a company necessary to work mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack built?’ Under such a process of filiation of necessities the sweeping clause makes clean work.”

Judge Vinson’s opinion, which declared ObamaCare totally unconstitutional for several reasons, recapitulated the government’s argument for them:

“Oversimplified, the defendants’ argument on this point can be reduced to the following: (i) the Act bans insurers from denying health coverage (guaranteed issue), or charging higher premiums (community rating), to individuals with pre-existing medical conditions (which increases the insurers’ costs); (ii) as a result of these bans, individuals will be incentivized to delay obtaining insurance as they are now guaranteed coverage if they get sick or injured (which decreases the insurers’ revenues); and (iii) as a result of the foregoing, there will be fewer healthy people in the insured pool (which will raise the premiums and costs for everyone). Consequently, it is necessary to require that everyone ‘get in the pool’ so as to protect the private health insurance market from inevitable collapse.”

Judge Vinson, who also quoted the above Jefferson letter, concluded, “Such an application of the Necessary and Proper Clause would have the perverse effect of enabling Congress to pass ill conceived, or economically disruptive statutes, secure in the knowledge that the more dysfunctional the results of the statute are, the more essential or ‘necessary’ the statutory fix would be.”

Where in those “foregoing” powers is Congress granted the power to force businesses to sell their wares at a loss?

Those two usurpations of powers not granted, wrongs, don’t make a right.

If our Washington lawmakers wanted to do something to help make insurance more affordable and accessible, they would use the Commerce Clause power to stop states from preventing the sale of health insurance across state lines or mandating coverage of certain tests or treatments.

5 comments on “ObamaCare argument: Two wrongs make a right

  1. Steve says:

    -1 + -1 = -2 basic math.

    This is not a double negative in english, it is two seperate negatives being added together.

  2. Thomas Mitchell says:

    OK, so it is doubly wrong.

  3. Steve says:

    Exactly. Consider each added necessary regulation another negative, triple, quadruple and so on. Hope the judges see that.

  4. Steve says:

    Ely Times. Good move. Fall back to a defensible position and regroup. Be successful and buy the Sun!

  5. Thomas Mitchell says:

    Yes, Ely and Eureka and Hawthorne … perhaps others as the empire strikes back:


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