The title words were spoken to Solicitor General Verrilli by Justice Scalia in yesterday’s oral arguments. Scalia was making the obvious point that because he might not buy a thing the government wanted him to, if Obamacare’s individual mandate was upheld the government could step in and coerce him into the act of buying whatever service or product du jour it fancied.
Verrilli said that Scalia’s accusation was not so because Congress has, and will, exempt some citizens from the requirement to buy insurance (and presumably other products and services). Who? Well, “those who for religious reasons don’t participate, those who are incarcerated, Indian tribes.”
Indian tribes are separate for obvious historical (and cultural) reasons. But it’s telling that Verrilli could only bring to mind those that were in shackles—presumably men enchained by their governments for illegalities such as failing to purchase health insurance, perhaps?—and those who have “religious reasons.” Too bad for those under lock and key, and who nevertheless have “free” health care, but what about the “religious”?
We have already seen how the government wants to redefine religious liberty as “freedom to worship” under the Health and Human Services other fiasco: Fluke-like “free” contraception and abortions paid for by those who object to them on religious grounds. We can thus guess that for Obamacare, there will be no escape, no conscientious objection for religion reasons.
Verrilli’s advanced later another argument which might appear compelling, at least to the bench’s port side. As summarized by Amy Howe, Verrilli said “everyone is either in the market for health care or will be at some point.”
This is false.
Did you not know that there were many people who eschew doctors and hospitals, whose only armamentarium against bodily invaders and decay is whiskey and aspirin, those who prefer to let nature take her course? And then there are those, probably a majority, who do not seek to eek out every last second of life without regard to expense. Why is this eccentric behavior the government’s business? Why would it be yours?
And there are other broken records I’d like to play, three other embedded fallacies in the government’s argument. One: health insurance is not health. Two: not everybody wants health. Three: health is not a constant.
The first is so obvious I blush to write it, yet it appears unknown to Verrilli and (at least) to Justices Ginsberg, Kagan, and possible Breyer, and even to Paul Clement, arguing for the “good” side. Insurance is not cost sharing. Let me repeat that. Insurance is not cost sharing. Insurance is a bet you hope you do not win. You bet with a bookie that you will get sick, the bookie bets you won’t. The pair of you agree on a price for the bet and how much is the pay off if you do get sick. Nothing could be simpler. This simplicity explains why those with “pre-existing conditions” are not offered insurance. To the bookie, it is like betting against a two-headed coin.
Justice Ginsberg is of the opinion that, somehow, the costs I must pay for my health must be borne by her, unless the government takes from her the money to pay for my care in advance. She actually used this argument yesterday.
What is wanted is not health insurance but money to pay for health care costs. Insurance is only one method to provide this money, and certainly not the best, especially when the government declares the bills of all must be born by the public purse. Indeed, insurance in that case is the worst option, hugely wasteful of money and ultimately lethal to the insurer. If you want a social-security-like system of health care, create that and not this boondoggle, wherein one citizen (regular Joe) has to pay money to another citizen (insurer) who pays out to yet another citizen (doctor), the government taking a bite at each step. That should be the counter-argument via the commerce clause: the economy will be damaged by this foolhardy policy.
Two: just as not everybody wants medical care, not everybody wants health. People often trade health, or the future promise of health, for immediate pleasures or as a swap for something greater and more lasting. Think of what John Henry sacrificed to prove that mettle is stronger than metal.
Three: if Obamacare holds, it will be the government and the barnacled, impersonal, quixotic, mindless bureaucracy which will decide what health is. And don’t you bet their definition will match yours. It will also decide what insurance means: we already know that “insurance” won’t mean “insurance.” Isn’t it strange to have a debate about a thing which is left undefined?
Justice Ginsberg said for those who don’t want insurance that “it’s not your free choice just to do something for yourself. What you do is going to affect others.” And so the government is right to step in and coerce you to buy “insurance.”
Dear Lady, this argument fails because everything you do, even in the privacy of your own home, even in the darkest recesses of your thoughts, affects others because whatever you do changes you, and thus how you interact with others. This is the human condition. We cannot therefore say that because all personal actions affects others, that the government has a right to regulate all personal actions. But this appears the direction some would like to go.
Update It is like reading tea leaves, but my take is that, as of yesterday, it is 5 to 4 in favor of overturning the mandate. Ginsberg wants to keep it, Kagan helped write it. Sotomayor appeared to support it, but not wholeheartedly, and the same with Breyer.
Now, it if is 5-4, Chief Justice Roberts, aware of the politics of how this bill passed in the dead of night, unrevealed (“pass it to see what’s in it”) and without a single Republican, might approach Sotomayor and Breyer and ask them to sign on to what is already a done deal. After all, 5-4 is enough, so why not make it appear less contentious and so calm the politics by making it 6-3 or even 7-2? He could offer them their own opinion, in which they could say that they like most of the what the mandate is about, but did not like it enough to swallow it whole.