THE POINTING FINGER BY DR. STEPHEN FINGER
....were the words immortalized by Nancy Pelosi when she was asked whether ObamaCare was ‘constitutional.’ Imagine, asking Congress if it was acting within the legitimate powers granted to it under the Constitution, the nerve of those persnickety reporters.
“Constitution? We don’t need no stinking constitution.” Oh, sorry, wrong movie.
Sometime in the next few months, the Supreme Court will be deciding whether Congress, in passing the Affordable Care Act, was acting legitimately within the powers granted to it by the Constitution to ‘regulate commerce among the several states.’
This ‘Commerce Clause’, as it is called, has occupied the attention of many lawyers, spending immense amounts of what are affectionately referred to as ‘billable hours’ (which bear no resemblance to any measure of the passage of time in any part of the civilized world), on what should have been a very simple matter,
The intent of these few words was simply to assure that no trade barriers were erected between the states, no tariffs, no laws favoring one state’s citizens over another, nothing. They were not put there in order to allow Congress to pass any law it chose to pass and then to justify it by linking it in any way possible to its power to ‘regulate interstate commerce’.
For example, suppose you are sitting in your house in Brooklyn and have a sudden craving for a ham sandwich. And suppose that you don’t want just any ham sandwich but that you want a ham sandwich from your favorite ham sandwich shop, which just happens to be located in...New Jersey.
Well, you get in your car and drive off. (If you’re driving an electric car, the battery dies before you get out of the driveway and the car stalls. Do not despair! You are green. You are good. G-d loves you. Go back in the house and have some sprouts. No ham sandwich for you today!) You drive over the bridge to New Jersey, buy your ham sandwich, and, now, here’s the tricky part, you have it wrapped and bring it back to Brooklyn to eat it. Did you just engage in interstate commerce? Do you need to be regulated? Does the whole ham sandwich industry need to be regulated? If you answered ‘yes’ to all three of these questions, you have been reading Paul Krugman’s column for too long. Cancel your subscription to the NY Times while you can still walk a straight line.
And it’s the same with health care. Yes, every state has companies that sell health insurance (and ham sandwiches). And it’s a big industry, a very big industry. And if you’re a New Yorker and get sick (or hungry) in Pennsylvania, you will be taken care of. So? This is the reason that the federal government has to take over the entire health care industry (or the ham sandwich industry?), because it’s big — because you can get health care (or ham sandwiches) in any state in the union?
Are they kidding?! This is an excuse, not a reason!
*Note: If you would like to express your opinion to the Supreme Court before it reaches a decision, remember to address your letter to Justice Anthony Kennedy, who is the Court’s ‘swing vote’. The other eight, being equally divided between four liberal and four conservative justices, are believed to have already made up their minds on this matter, as they have on so many others, and serve no useful purpose other than to show up on the first day of each new term to pose for the Court’s traditional yearly photograph.