Obamacare, Common Sense, and the Law

The Atlantic ^ | March 29, 2012 | by Clive Crook

[Oldeconomybuyer]

The best reason to rule Obamacare constitutional--the one that makes the answer seem obvious--is a matter of common sense. But that's a case counsel isn't allowed to make.

The common-sense case goes like this. Contrary to what Justice Kennedy said this week, no important principle is at stake in this decision. For all practical purposes, the economic power of the federal government is no longer constitutionally constrained.

Am I forgetting the Broccoli Question? If the government can force you to buy health insurance, what can't it force you to buy? The common-sense answer to this, as we've just seen, is straightforward. Nothing.

As a practical matter, in other words, there's no "limiting principle". As a legal matter, of course, the Justices who see Obamacare as good policy will bend over backwards to devise one, and those who see it as bad policy will find grounds to be unpersuaded.

In America, the Constitution is a quasi-religious document. Its constancy is an inviolable national myth.

So let's not pretend that striking down the mandate would be a victory of principle rather than just a huge embarrassment for the White House, or that upholding it would mark a big new advance of government power. Politically, it matters. Constitutionally, it's a tremendous fuss about not very much.

[Oldeconomybuyer]

Clive Crook is a senior editor of The Atlantic and a columnist for Bloomberg View. He was the Washington columnist for the Financial Times, and before that worked at The Economist for more than 20 years, including 11 years as deputy editor. Crook writes about the intersection of politics and economics.

[I cannot think of a name]

“For all practical purposes, the economic power of the federal government is no longer constitutionally constrained.”

I thought he was going to talk about Obamacare? Instead he launches off into the justification for the second American Revolution.

[the invisib1e hand]

disagree with what appears here. Precedent matters. Yes, there is little "limit" on what the government does anymore. People also get murdered. But you don't embrace murder as a "right" established by legal precedent.

Sorry, Clive.

[VRWC For Truth]

The power of the government is FINANCIALLY restrained. When they run out of other peoples’ money, the SHTF. Invest in guillotines. Heads rolling will get things fixed pronto.

[Prospero]

If this attitude prevails we will soon be in a civil war. Caesar will not be so much a person as Behemoth, a dark tower of petty tyrannies. According to our declaration of independence it will become a duty to alter or abolish it, having become destructive of liberty.

[BilLies]

“...is a matter of common sense.”

I thought that was one of the more mundane arguments against buggery.

[Major Matt Mason]

Am I forgetting the Broccoli Question?

Wow, talk about missing the point of that example - intentionally, no doubt.

[muleskinner]

"...worked at The Economist for more than 20 years, including 11 years as deputy editor."

Only deputy editor? Apparently, Clive wasn't leftist enough.

[Deagle]

Questions have been wrong in this case and many other cases in the past. The question should have bee is why do you think that you have Constitutional authority in this matter?

I reality, there are many already passed laws that would fail this test. The problem is that neither party really understands (or wants to) the Constitution.

The 10th amendment really need to be clarified by the Legislative branch. Since the Republicans seem to be reluctant to do so, it must be up to the people!

Until this happens, everything here is just noise!

[Thom Pain]

Cook is just another Fluke.

[OneWingedShark]

>People also get murdered. But you don’t embrace murder as a “right” established by legal precedent.

Bad example, because you do: Roe v. Wade.

[the invisib1e hand]

Bad example, because you do: Roe v. Wade.

..so you do.

sure is a crazy, mixed up world we live in.