The moral outrage that the law has provoked is weird. It’s a tyrannical intrusion on your liberty if government makes you pay for health insurance before you get sick and demand treatment! But if millions of people die from preventable diseases, or are bankrupted by medical expenses, no problemo. Libertarians focus obsessively on threats to liberty from the state, but there are lots of other things that threaten your ability to live as you like. Getting cancer and not being able to afford chemotherapy, for instance. (No, you can’t get that at the emergency room.)
One of the most remarkable things about Wednesday’s colloquy on severability — whether to trash the entire statute and to cut off federal insurance subsidies to millions of the working poor because you don’t like one small provision, the mandate — was their simultaneous sensitivity to politics (they predictably divided along party lines) and pretense of obliviousness to it. “One way or another, Congress is going to have to reconsider this,” Justice Scalia said, “and why isn’t it better to have them reconsider it . . . in toto?” But this presumes that there will be another round of legislation. The more likely scenario, given the extraordinary difficulty of passing the law in the first place, is that there will be no healthcare reform at all for many years to come. The Democrats will have no stomach for another such fight, and the Bush Administration showed by its inaction that Republicans don’t give a damn about affordable healthcare. The best historical parallel here is the period after Reconstruction, when the Supreme Court struck down civil rights and anti-lynching laws on technical grounds, lecturing Congress that it needed to rewrite the statutes. The political moment had passed, and there was no more civil rights legislation for over half a century. A decision invalidating the ACA risks similar paralysis.
The obsessive worry about an overbearing federal government suggests another historical parallel. In 1916, Congress banned the interstate shipment of the products of child labor. The rhetoric was as hysterical then as it is now: the Court declared that if Congress could do this, “all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and, thus, our system of government be practically destroyed.” The Supreme Court’s invalidation of the law astounded even those who had most strenuously opposed enactment and provoked a wave of national revulsion and the rapid enactment of a second law — a tax on products of child labor — which the Court also struck down, in 1922. The decision was overruled in 1941. The Court did not save America; what it actually accomplished was to thwart democracy – the law passed by 337-46 in the House and 52-12 in the Senate – and consign large numbers of children to the textile mills for two decades. Healthcare is another context in which the Court is at serious risk of ravaging the lives of large numbers of actual people. In both the child labor and healthcare contexts, opponents of reform flee from illusory dangers into the jaws of real ones.
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