Legalising Legislative Deception: Judge Sutton and the Individual Mandate

Orin Kerr is proud of himself that Judge Jeffrey Sutton agrees with him on the individual mandate rulig:

I think Judge Sutton’s separate opinion is excellent, but then it’s easy for me to say: Judge Sutton’s views closely match what I’ve been saying here and elsewhere for a long time, so maybe this just proves once again that brilliant people agree with me.

He may be, but I am not.  It’s difficult to follow much of the argument here, but this is, as I see it, the course of events:

  1. Congress mandates that hospitals and other health care providers furnish services to those who cannot afford health care.
  2. Health care providers comply with this, using the paying customers to subsidise those who can’t pay.
  3. Congress and the President then decide that everyone’s health care needs to be paid for.  Obvious solution: do a single payer and tax everyone.  Had they done this, we wouldn’t be having the judicial back and forth over the individual mandate, because there would be no argument that the federal government has the power to tax.  But because most people are happy with the status quo and insurance companies would vanish with a single payer, we ended up with the cobbled mess called Obamacare.
  4. The losers then sue, pointing out that the federal government is forcing people to buy something against their will.
  5. Sutton and his ilk respond that, because of (1), mandate is both necessary and no sweat, and really is a tax, which Congress can do.  This not only confirms Congress’ legerdemain/bait-and-switch (take your pick,) but also makes (1) look like a set-up for (3).

If the Supremes buy this and uphold the individual mandate, they will do the following:

  • Allow Congress to get away with seriously deceptive legislation, which will only encourage more (as if they needed the encouragement).
  • Short-circuit process and substantive content in legal language, or more directly further the cause of outcome-based justice, which undermines the rule of law.
  • Allow Obamacare to proceed.  As an administrative nightmare, it will make a mess of health care, which will only encourage the push for the next step: single-payer health care.

The government will end up issuing everyone a health care card.  But, to obtain really worthwhile health care, we will need two documents: a passport and a plane ticket.

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