Last week’s Kessler decision just may be the new winner in my collection of the unbelievable but true. In fact, this column made me think I had clicked a link to The Onion by accident. So I downloaded the decision on the Constitutionality of the Patient Protection and Affordable Care Act, also known as ObamaCare. Nope, it was not The Onion. It was reality, but a very strange incarnation of it.
At the heart of the Constitutional challenge is the Commerce Clause, which empowers Congress to regulate interstate commerce. Over the years, this clause has been used expansively to justify Congressional meddling, oops, lawmaking in all manner of activity. My favorite is the ruling against a farmer who grew more than his allotment of wheat (for his own consumption), though a similar case involving homegrown marijuana for legal medical use runs a close second.
Never before, though, has Congress passed a law that requires one to engage in an economic activity. If that sounded strange, it was. Let’s put it another way. Not buying something (health insurance) is illegal under the new law, and Kessler thinks that is just fine. These three excerpts from the decision will help you, mmmmm…understand.
“Both the decision to purchase health insurance and its flip side–the decision not to purchase health insurance–therefore relate to the consumption of a commodity: a health insurance policy.” (Translation: My refusing to buy silk stockings is an economic activity.)
“…individuals are actively choosing to remain outside of a market for a particular commodity, and, as a result, Congress’s efforts to stabilize prices for that commodity are thwarted.” (Translation: My refusal to buy silk stockings in concert with others affects the market for silk stockings.)
“It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.” (Translation: My refusing to buy silk stockings is on par with refusing to buy a brass flamingo or an Edgar J. Hoover bobble-head.)
I am tempted to buy those stocking, along with a nice bustier and some spike heels, and prance about in front of the Capitol. Let’s see what that does to the demand for health care.