Federal Judge Roger Vinson took another step yesterday in the radical Right?s attack on American self-government. Relying on a newfound constitutional right to free-ride, Judge Vinson held that Congress may not require citizens to pay their fair share of medical insurance costs and declared the entire Patient Protection and Affordable Care Act unconstitutional. Instead, Congress must, according to this novel understanding, allow those who prefer to leave their medical costs to charity and the public fisc to do so. If this reasoning was applied to the Selective Service System, let alone taxation, the implications would be astonishing.
This new right is not entirely without foundation in the Constitution?s text: although Vinson does not say so, it clearly relies on the ?interstices and lacunae? of Article I, Section 3 (which grants small states the same number of Senators as populous ones) and Article IV, Section 2, Paragraph 3 (the fugitive slave clause, requiring free states to re-enslave escaped slaves), both of which allowed some parts of the union to force others to subsidize them. And, of course, the Constitution does provide for an extremely limited federal government?it explicitly bars a standing army (and thus the Pentagon), for example.
Still, Judge Vinson?s innovative interpretation is incompatible with the general structure of the document. In the end, ours is a Constitution enacted by We the People in order to form a more perfect Union and promote the general Welfare?not to make life easier for people who don?t want to pay their fair share of our collective enterprise.
Our medical care system is broken. No fix is possible without some form of national health insurance or national health care?some variant on Medicare-for-all or VA-for-all or, as in the current version, a privatized version of Medicare for most. And no health insurance scheme can remain solvent if people are permitted to pay in only when they are sick or if insurance companies can evade legal mandates by simply shifting to the state with the most compliant regulators. Since the Supreme Court abandoned its attack on the New Deal, it has been a fixed point in constitutional jurisprudence that Congress?s power to regulate interstate commerce is plenary. There is no intelligible argument that Congress lacks the authority to deal with a national crisis of the highest magnitude.
Judge Vinson?s attack on the essential heart of any health care reform turns the Commerce Clause on its head, claiming that our Constitution bars us from its very purpose?promoting our general Welfare.