by Martin Harris
With apologies to Thomas Aquinas, Duns Scotus, and other medieval scholars once accused of arguing distinctions-without-differences to avoid major questions/problems –“how many angels can dance on the head of a pin?” is the favored example—the subject of subject-avoidance is still a valid one. Consider, for example, the current SCOTUS interest in the mandatory-insurance-purchase requirement in the Patient Protection Act of 2010: in a reprise of medieval angelology the nine legal scholars are more interested in whether it’s a “tax” or a “penalty” than whether or not people who choose not to pay for (or pre-insure for coverage of) medical services are Constitutionally entitled to them anyway via the use of Other Peoples’ Money (a little Margaret Thatcher phraseology, there) without Other Peoples’ approval. And your Humble Scribe foolishly thought that Con-Interp always was (and still is) the primary task of the Nine.
When not differentiating between “tax” and “penalty” for health-insurance non-buyers, the Nine have been agonizing over whether “going bare”, health-insurance-wise, was an illegal threat to InterState Commerce. Stare decisis: In 1942 their predecessors (an equally distinguished Nine, apparently) were laying the groundwork for the 2012 SCOTUS by addressing the problem of wheat-growing: whether Ohio farmer Roscoe Filburn was jeopardizing InterState Commerce by putting more acres into wheat than the omniscient Feds had authorized him to plant. His argument –that the wheat allotment was for grain that would be sold into commerce, while the beyond-quota acres were for on-farm use only—did not impress eight of the Nine, (one abstention) who ruled that, even if used for household purposes, local-vore wheat damaged InterState Commerce because it enabled him to avoid buying an equal amount from across the State border. Full disclosure: your Humble Scribe is even more guilty than Roscoe, having grown table crops ranging from tomatoes to asparagus which would otherwise have been a cash crop crossing not just a State line but the US-Mexico International Border, and having thereby damaged the Mexican cash-crop veggie economy just as the hapless Mr. Filburn damaged the domestic cash-crop wheat economy by his legally unacceptable exercise of grow-it-yourself independence. Lawn-to-garden local-vore practitioners in Vermont, be ashamed: your greedy and selfish front-yard cultivation of cilantro and arugula has worsened Central American poverty. We don’t yet know the 2012 SCOTUS vote, taken a few days back: some Court-watchers predict that the Nine have already crawfished backwards from Wickard v. Fillmore precedent and voted that citizens who don’t plan on needing medical care need not buy health-insurance, just as those who don’t own houses or cars need not buy insurance for those categories, without either “tax” or “penalty”.
Like medieval angelologists, the Nine have been, by choice, enmeshed in the Constitutionality of the insurance-purchase mandate. It’s an unanswerable question, now that a recent-history SCOTUS found, first in Whitney v. Connecticut, and then in Roe v. Wade, whatever it wanted of “emanations and penumbras” of previously-unknown legal principles right there in invisible ink, probably in Article VIII. As then, so now. Post hoc, ergo propter hoc. For non-angelologists and students of the –gasp—actually-written Constitution, the better subject might be the Fifth Amendment denying government the right to take savings (private property) from A to pay expenses for B just because B chose to be a “free-rider.” Surely a SCOTUS capable of memorializing “emanations and penumbras” could have replaced pin-head dancing with, say, ”confiscation and re-distribution.”
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After all, a previous SCOTUS did just that in Berman v. Parker, the 1954 case in which the Nine (eight, actually, just as in the earlier wheat case) changed the Fourth Amendment by giving an settled old word a whole new meaning: to facilitate urban renewal, henceforth government could take property from A, not for its own direct “public use”, but to give to B in pursuit of a “public purpose”. Don’t try this at home, but if you look up the Fifth Amendment, the word “use” is still there and the word “purpose” isn’t. By emanations and penumbras, you are now meant to accept that “use” means “purpose” whenever the Red Queen (a little verdict-first, trial-later Alice in Wonderland, there) says so.
Reportage of the Court’s debates focuses, for unexplained reasons, on the Constitutionality of the insurance-purchase mandate and not on the free-rider question. A recent statistical chart in the Wall Street Journal shows just who those would-be-free-riders are, using a total of 12 socio-economic categories ranging from aliens, illegal or otherwise, to empty-nesters; and it turns out that those who’d rather not buy –-residents of “monied ‘burbs” and young, educated populations– are lowest on the insurance-non-coverage scale, at about 12%, while minorities and immigrants are highest at about 23%. Nationwide, 3 out of 4 have chosen to purchase coverage, and without a mandate. . Both above-average-income groups have chosen to go bare for reasons other than affordability. Just why members of these groups are not to be permitted to self-insure should a medical expense arise, media coverage of SCOTUS commentary and questions hasn’t explained.
A logical explanation is that members of these two groups have considered the odds and concluded that creating a private health-care sinking fund would be a better buy than paying insurance premiums for services which may not be needed for years, if not decades. And it’s possible that the proposed premium schedule in government health care, the so-called ‘community rating system” designed so that the younger and more healthy non-users of services subsidize the older and less-healthy, is a further deterrent for the first group to resist becoming a transfer=payment source for the second group. An interview-poll would answer the question. In its absence, an observer would conclude that the “community rating system” is ideologically rather than actuarially driven, and that the designers of the Patient Protection consciously chose, unlike the sophisticated risk-evaluation premium-variation system used for autos and buildings, not to charge enrollees who present healthy and low risk less than enrollees who smoke, consume high-sugar/high-fat diets, and by various personal-behavior choices not describeable here are statistically proven to be more expensive to cover. Why this equal-outcome ideology is so important to the PPA designers is a valid subject for speculation.