The Best Damn Argument For The Unconstitutionality of ObamaCare...

...and I missed it the first time 'round, and haven't seen anyone else call it out, until now.

A New York Times article discusses Anthony Kennedy's very-swing vote, and how both teams of lawyers composed much of their argument and almost all of their summations to appeal to him. Since Kennedy is always talking about "liberty," they both tried to present their positions as pro-liberty.

This made Clement wonder: A law that forces you to do things you don't want to do is pro-liberty?

But anyway. The other lawyer against ObamaCare, Carvin, the one no one is really talking about too much (except to say "both challengers' lawyers were better than Verrilli) made a pitch to Kennedy that makes a great deal of sense.

“The young person who is uninsured,” Justice Kennedy told Michael A. Carvin, a lawyer for private parties challenging the law, “is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.” Audio: Justice Kennedy’s Questioning of Carvin

Mr. Carvin responded that the law actually frustrated individual responsibility. “They’re compelling us to enter into the marketplace,” he said, but “they’re prohibiting us from buying the only economically sensible product that we would want, catastrophic insurance.”

This is not about whether catastrophic coverage -- didn't they call that Major Medical, and wasn't that, until recently, pretty common? -- is the most economically sensible coverage.

It is that, actually. But we can't really argue that point too much in court because the courts are not supposed to evaluate policy responses and decide which is best.

The point is that major medical can certainly be argued to be the best health insurance product for many, or even most (or I'd argue: all) customers, and yet ObamaCare forbids it. Makes it illegal. Strips that liberty to choose away.

Often these questions are about framing. If you frame the abortion question as the mother's choice as to whether to terminate a pregnancy versus the baby's right to live, that's not only a tough question, but many think it's not a tough question at all -- if you frame it that way, they say, it's not even a question. Abortion should be illegal.

But the court, in framing the question in Roe v. Wade, cast the conflict as between a woman seeking medical advice and treatment versus the state's need (or lack thereof) to block her from seeking medical advice and treatment.

Woman vs. Baby? Tough question, and baby probably wins.

Woman vs. the State? Um, easy question. Woman wins.

So, Roe v. Wade just ignored the tough question really behind the abortion debate to focus on the relatively easy question -- freedom is good, the state should be limited -- and decided it that way.

It was easy for them once they framed it to be easy.

Now, ObamaCare supporters would like to frame this case as a choice between two tough options -- either we permit this constitutionally-absurd bill, or else millions of people can't have medical coverage and will suffer and die.

If you frame it that way, ObamaCare has a shot, because most people are anti-suffering and anti-death.

But is that the proper way to frame it?

If we look at it Carvin's way -- this is about the government taking away your ability to choose an economically sensible, historically useful product, Major Medical, and forces you instead to buy a very costly, dubiously useful policy which covers almost everything (and of course costs more than it would just be to buy each service with your own cash), then that seems to be a much easier question.

Where does the government get this idea that it can take away our liberty to purchase products that make sense to us? Or force us to buy any product at all?

See, the liberals' argument is that this should be permitted because of course no one would, or should, go without medical insurance. They feel that they can say this is such an easy call, that they are so wise in these matters, they can say that your choice to be uninsured is strictly irrational, and they do not have to make allowances for your irrational decisions.

The right decision is to carry insurance -- and sure, maybe it takes away your freedom to be stupid if we refuse to permit you any other option, but that's a relatively unimportant freedom, in their thinking. (I'd argue it's a very important freedom-- because once you go down this road of deciding that people have only the "right" to make "correct" decisions, you have no more freedom; you have a state that which will decide what's best for you.)

But Carvin's point defeats even that line of reasoning. Because Carvin can say "I'm not talking about this 'right to go uninsured,' which you liberal busybodies will dismiss as unimportant. I'm talking about the right to make a different sensible, economically-smart choice -- to have insurance, but a major medical catastrophic coverage policy, so the insurance is actually real insurance and only covers me when I incur high costs. Under that, I pay myself."

Now, that is not a stupid exercise of freedom. That is a very deft exercise of freedom -- and one that ObamaCare would forbid.

It's one thing, for paternalistic minded liberals (which Kennedy can be sometimes), to say that you're going to permit an otherwise unconstitutional assertion of power by the federal government, because the only "freedom" you're destroying is a self-destructive one.

But what about when the government asserts the power to not only forbid a self-destructive choice, but a perfectly reasonable and sensible (and arguably: Optimal) choice?

Now we're not talking about some "freedom to be self-destructive" anymore, a freedom that the paternalistic liberals will sneer at, in the interests of Protecting People From Themselves.

Now we're talking about pure freedom, freedom to make a proper choice, too.

The government just decided that all insurance must be comprehensive. And that no one any longer had the freedom to choose anything but that -- even its superior competitor, Catastrophic Coverage.

That's not destroying a "stupid" freedom to be self-destructive. That's taking away a very real and sensible choice.

And on what authority, exactly?

I sure hope the justices consider this more.

posted by Ace at 03:36 PM

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