Thursday, July 12, 2012
Randy Barnett: "Losing Obamacare While Preserving the Constitution": How Libertarians Won with the Commerce Clause
The Affordable Care Act was ruled Constitutional based on the Taxing Power of the Federal Government, not through the Commerce Clause. Which means Congress can tax people based on when they believe Americans are doing something thats unhealthy or bad for the country as a whole. For example people who can afford to pay for their Healthcare but have chosen not to and get their Healthcare at the expense of people who pay for their Healthcare. Which is a victory for Liberals who don't want to deny people the ability to do things that are unhealthy to themselves. They just don't want people to be able to pass the costs of others unhealthy activity onto people who make better decisions. And a lost for Libertarians because now the Federal Government can penalize people for things that they've decided to do on their own but its a victory for Libertarians, Conservatives and why would argue for Liberals. As well as a Liberal myself as it relates to the Commerce Clause because the Supreme Court decision limits the Federal Government in what it can do under the Commerce Clause. Which is a lost for Progressives who constantly argue for the Federal Government to be able to act in the economy in the interest of the country.
As much as Progressives may hate this and one reason why they arguing for amending the US Constitution. The Federal Government is limited in what it can do under the US Constitution, which is one reason why our Federal Government spends on average 20% of our GDP post World War II. And its just in the last three years where the Federal Government has spend roughly 25% of the GDP, compared with Europe that generally spends around 50% of its GDP on their Federal Government. Because there aren't the same restrictions on the Federal Governments in Europe Constitutionality as there are in America. And Europe settles a lot of things that their people may want to do on Popular Vote and if the people don't like what the Ruling Party is doing, new Federal Elections get called. Where in America we settle a lot of what our Federal Government can do through our Federal Courts.
My opinion of the Constitutionality of the Affordable Care Act is similar to Chief Justice Roberts. That its very hard if not impossible to make the case that its Constitutional based on the Commerce Clause, that the Federal Government can force people to purchase something in the Private Market. But that it can penalize people when they do things that are not only bad for them but bad for the rest of the people who have to pay the price of these bad decisions.