The High Court and Obamacare

By Bill Murchison
Tuesday, November 15, 2011

As anticipated, the U. S. Supreme Court will join 300 million fellow Americans in rendering judgment on Obamacare. But with this difference: The high court's judgment, expected next June, will be the judgment that sticks.

The rest of us -- members of Congress and lower court federal judges included -- merely spout off with force and vehemence. We love the health care law. We hate it. It makes us sick, except when it excites rejoicings. The sole reaction we withhold from the law is indifference.

That's the problem, isn't it? A law meant to reorder the way 300 million people receive and pay for health care -- a law that strokes all of our mental and physical muscle -- requires broad popularity and acceptance.

Its fate should not hang on the deliberations of nine men and women educated to thread constitutional needles, as the high court must thread them, seeking to determine how much power to assign government over our health care choices.

The basic question set for adjudication is whether the federal government may compel Americans to purchase health insurance. Opinions at the lower court level are divided on this urgent question. Some say yes, others no, which of course is why our highest court has to advise us who is right. Most observers expect the court to divide over the question, possibly five votes to four. There you have it again -- the reason Congress and the Obama administration badly overcooked and oversauced this grand legislative casserole.

Determined to do a job they deemed overdue, congressional Democrats cut a stick off the nearest tree and informed Americans what was going to happen. The bill was going to pass. Did we understand that? If not, how come? Whish-whish, went the stick.

Thus, the bill finally passed. But the whish-whish of the stick -- a rigged congressional process with no room for honest discussion of the Democrats' plan -- only made things worse. Congressional Democrats, it was clear, didn't care about consensus or general acceptance. They had the votes. That was enough.

My-way-or-the-highway is a variety of politics occasionally popular with democratic leaders. Nonetheless, it has grave limitations. When said democratic leaders intend sweeping cultural and economic change, the smart and respectful thing is to achieve broad agreement on ends and means. The "capital-d" Democratic thesis was markedly different. It was: We're doing this! No efforts at reconciliation of widely divergent viewpoints or objectives were wanted. Nancy and Harry knew what was wanted or anyhow kept telling us so.

Enter the Supreme Court to try and wrap this thing up neatly. It will be some trick the Obama White House and its congressional allies pull on potential supporters by declining reasonable conversation among such reasonable folk as can be found in modern politics. Whatever the high court says now, by a one -- possibly two-vote margin -- will only stir up more anger and hard feelings.

Congress did an ineffably dumb thing in enacting Obamacare: It pressed too hard. It treated grown-up Americans like kindergartners, incapable of doing a lot more than drooling in joyful assent. Thereby Congress -- with President Obama's invaluable assistance -- divided the country still further over a sensitive policy matter that no court, howsoever high, can decide on without contributing to further divisions. It's such brilliant statesmanship. Thank you, Nancy. Thank you, Harry.

In the meantime, a sense of trepidation wells up as to whether significant harm to liberty -- leave health aside -- is in prospect. The high court just might let Congress get away with compelling purchase of health insurance, as part of the power to regulate interstate commerce. After all, a court dominated by New Dealers held nearly 70 years ago (Wickard vs. Filburn) that the Agriculture Department could forbid a farmer to grow wheat to feed his own livestock.

The point is one you might think would cause certain congressmen to step gingerly, delicately, before marching into territory not previously under federal jurisdiction. It would seem such congressmen were in short supply when the roll was called for Obamacare.