Thursday, March 25, 2010

One more thing about this health "insurance" stuff

(Shelby asked for more on this... so don't blame me.)

When I was taking the bar review course, around a million years ago, one of the instructors (a Kent law professor, Michael Spak), said something about new laws that's stayed with me: New laws are always good for lawyers, he said. It may not be in your field, but it's more work for somebody which means more work to go around for all.

The current health care bill, or bills, or whatever, may prove the exception to this rule.

Oh, the legislation is going to provide a field day for all sorts of lawyers -- state attorneys general from a number of largely "red" states are already plotting constitutional challenges to the packages. But that will surely be only the tip of the iceberg, depending on whether the laws survive these initial court challenges.

A colleague said to me yesterday, in fact, that he's figured out the bill: Congress has required all Americans to have money, he said.

"Money?" I asked.

"Money," he said. "You have to buy health insurance under the new law. You need money. If you don't buy health insurance, you'll be fined. You need money for that, too. Either way, you need money."

"But what if you don't have money?" I asked.

"That's the part I haven't figured out," he conceded.

Sarcasm aside, the key flaw in the new health insurance laws seems to me to be the idea that Congress has the power to compel citizens to purchase anything -- insurance, corn flakes, arugula -- under our Constitution. (Read this column by Jonah Goldberg on this point -- it's from the National Review Online, though I read it this morning -- in print in the Chicago Sun-Times.)

The federal mandate to purchase health insurance is not like a state law which can compel citizens to purchase auto insurance for two reasons: First, driving is a privilege granted by the state. I sure hope the distinction between driving and living is comprehensible -- even to federal judges. Second, states have police powers that our federal government of specific, enumerated powers does not have. Or did not have.

The challenges to this health care law will bog down all sorts of lawyers in the courts, perhaps for years, and may (will probably?) work its way up to the Supreme Court of the United States itself. Who knows who will be sitting then? John Paul Stevens is nearing 90 and clearly considering retirement. Ruth Bader Ginsburg has had a couple of serious cancer bouts; rumors of her retirement also circulate from time to time. Whoever is sitting at the time, the Court might divide 5-4, along ideological fault lines, on the constitutionality of the health insurance laws... and that would be a disaster for the country as a whole and the legal profession in particular.

If the health insurance laws are thrown out, the Left will decry right-wing judicial activists and the Right will be more firmly convinced than ever that the Court is our last bulwark against a rogue Congress. The rule of law -- the idea that we are a nation of laws, not of men (the word "men" used here in the generic, non-gender-specific sense because "people" sounds wrong) -- will suffer in both camps. (Suffer? I would venture to suggest that faith in the rule of law is flickering and nearly extinguished in both camps already.) And yet, it is the rule of law that has made our nation rise above the petty ethnic and tribal differences that have doomed other civilizations.

And the funny thing is, more and more, as I think about it, "health insurance" isn't really insurance at all.

The fringe elements are in control of both of our political parties. We must either reclaim the parties or start new ones. And we need new census maps. Anti-incumbent maps -- maps drawn in compact, contiguous shapes, as near to square as population will allow, without regard to the political or other leanings of those who reside therein. We got away from that -- legally -- to protect minority voting rights under federal law. I don't know if we can go back. But that's where I think we should start.


Empress Bee (of the high sea) said...

yeah, new maps, that's how i got in alcee hastings district, buggers!

smiles, bee

Shelby said...

thanks for this.. filling out my census form.. and scratching my head.