“I don’t want to sell anything, buy anything, or process anything as a career. I don’t want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed. You know, as a career, I don’t want to do that.”
—John Cusack as Lloyd Dobler in Say Anything
Somebody has to put a stop to this.
On Thursday, the President purported to bail out Congressional Democrats drowning in a tsunami of outrage over millions of people losing their medical care insurance due to the minimum coverage requirements of FUBARCare. Following up on a proposal discussed in the last post, Obama made an executive decree authorizing the continued sale of discontinued policies made illegal under the law.
The trouble is the Democrats, having created the problem in the first place, can’t fix it by reinstating the plans. They don’t have the constitutional authority to do so, and their insistence on doing it anyway is frightening.
They can’t do it via legislation, as we discussed Senator Mary Landrieu (D-LA) pushing. The one thing Chief Justice John Roberts got right in his majority opinion in National Federation of Independent Business v. Sebelius was that the Commerce Clause does not give Congress the power to compel economic activity. Because of that, it could not be used as a constitutional basis for upholding the individual mandate. Senator Landrieu’s proposal simply amounts to an insurance company mandate, and the same analysis would apply.
I suppose one could argue that an insurance company mandate could be supported like the individual mandate was by enforcing it via a tax—Roberts was still wrong on that, by the way—but as a practical matter I don’t see how you would make that work. It’s one thing to require individuals each of whom has to file their own tax return to submit proof of insurance with the return or have to pay their individual penalty. But how do you enforce a tax on an insurance company to compel the reinstatement of hundreds of thousands of canceled policies? How would you even compute such a tax, particularly when some people may have made other arrangements and don’t renew? And there remain the disastrous long-term economic effects of compelling reinstatement, which we touched on in the last post.
Nor can the President do it. Like Congress, he doesn’t have the authority to compel economic activity; the Commerce Clause doesn’t even apply to the President. But he avoided that by not going as far as requiring insurance companies to reinstate policies, only decreeing that they would be permitted to continue selling policies that do not meet the statutory minimum coverage requirements. He calls it “enforcement discretion,” and it is a power that doesn’t exist under the Constitution. Scour Article II—you will not find it.
Once again, we see this President unilaterally amending legislation—legislation he signed into law—creating a line-item veto by executive fiat, a power he simply does not have. The President is only empowered to execute—that’s what an “executive” is—the laws passed by Congress. He is not empowered to edit them, nor is he empowered to pick and choose which laws he will execute and which he will not. One wonders where all those Democrats who little more than a month ago were shrieking at Ted Cruz that “It’s the law of the land!” are now. Thursday’s announcement and whatever order or communication that will go out to implement it are absolutely and unequivocally unconstitutional.
Notice a couple of things about the President’s “fix.” One, it doesn’t lift the minimum coverage requirements; it only says that the penalties won’t be enforced. It will remain illegal to have such a policy, and it will remain illegal to sell such a policy. I don’t know about you, but I don’t know how comfortable I’d be holding or selling an illegal policy based on this President’s (unconstitutional) assurance—revocable at any time at his whim—that I won’t be punished for it.
Two, this “amnesty” plan is only good through 2014, once again conveniently pushing the issue off just long enough to get them through yet another election cycle. And it likely does little for the millions who have already had their policies terminated. Like everything else with this President, it’s a substance-less veneer; a cynical mirror hastily erected to divert your attention from the bigger issue.
And that bigger issue resides in the underlying thought process reflected in FUBARCare and the most recent band-aid. Under FUBARCare, Congress took upon itself the power to compel individual private citizens to purchase a product regardless of whether they wanted it or could afford to pay for it, under penalty of law. Let’s stop there for a moment; where does that end? If Congress can make you buy medical care insurance, can’t it through the identical mechanism make you buy any other product or service it chooses to favor with an artificial compulsory market? Suppose the UAW goes to Congress and says “We need more people buying cars”—what’s to stop Congress from enacting an individual automobile purchase mandate requiring every person over the age of 26 to buy a new car every three years or face a $15,000 fine, er, tax (with, of course, the appropriate federal subsidies, etc.)?
Pressing on, we see that the proposed solutions to the policy cancellation issue simply flip the analytical equation that led to FUBARCare in the first place. Having compelled people to buy the product, the Progressives’ instinctive fix for the cancellations was then to compel people to sell the product. True enough, Obama’s illegal exercise of fiat has—for now—stopped just short of compelling private insurance companies to sell the old policies, but compulsory sales was in fact the concept behind Senator Landrieu’s legislative proposal. She wanted to force insurance companies to continue to sell policies they would otherwise cancel, and do so even at a loss.
Just like compulsory buying, this compulsory sale idea is subject to logical extension, and the place it leads isn’t pretty. If government—whether via legislation or executive order—can compel a private insurance company to sell a policy, then it can compel any other private enterprise to sell a product, again even at a loss. And if it can compel a private corporation to sell a product, it can compel any organization to sell a service. And if it can compel a private organization—a private group of people—to sell a service, then it can compel a private individual to sell a service—force him to work—and again, to do so even at a loss.
Rusty, that’s crazy. No one would ever suggest the government force individuals to provide a service against their will.
Really? Well there are Progressives already openly campaigning on the premise that government should force doctors to accept Medicare and Medicaid patients—force them to provide a service—even if those doctors can’t break even under those programs’ payment structures. It’s not far from there to say that doctors have to accept all patients, regardless of who they are or whether they can pay at all. And if they can do it to doctors, well guess what, Sport . . .
It’s called a “command economy,” and it’s a hallmark of totalitarian communism. Once government controls both sides of the transactional equation, once it acquires the power to compel both the purchaser to buy and the seller to sell, then all freedom is lost. There is no private property, because both your money and your goods are subject to being forcibly exchanged in compulsory transactions; they belong to the government, to be disposed of as it sees fit for the collective good. There is no liberty, because your labor—your fundamental control over yourself—is subject to being forcibly devoted to the service of someone else, whether you receive adequate compensation in return, or even any compensation at all; it likewise belongs to the government, to be disposed of as it sees fit for the collective good. We all become slaves, each chained to the other, with the whip hand belonging to the Progressive ruling elite.
The Constitution was meant to protect you from this. And it’s being openly, contemptuously ignored, with hardly a word in protest. Once this genie is out of the bottle, friends, there ain’t no going back. Write and call your Representative and your Senators; tell them they have to speak out and take action in defense of the Constitution.
We have to stop this now. If it’s not already too late.