Ever since Judge Vinson ruled that HCR must be thrown out in its entirety the argument presented for doing so has not struck me as legally sound (and I am no lawyer) even though the White House and the press have been dancing around it as though it might possibly have some legal merit. I think I have figured out where the problem is so follow me below the fold.
From Yahoo News"
At issue was whether the government is reaching beyond its constitutional power to regulate interstate commerce by requiring citizens to purchase health insurance or face tax penalties.
Vinson, who was appointed to federal bench by Ronald Reagan in 1983, said it is, writing in his 78-page ruling that if the government can require people to buy health insurance, it could also regulate food the same way.
"Or, as discussed during oral argument, Congress could require that people buy and consume broccoli at regular intervals," he wrote, "Not only because the required purchases will positively impact interstate commerce, but also because people who eat healthier tend to be healthier, and are thus more productive and put less of a strain on the health care system."
and directly to the point that I am asserting here:
From NBC's Pete Williams:
Judge Roger Vinson found the entire law unconstitutional, after declaring that its key element -- the health insurance mandate -- was a law Congress did not have the power to enact. Opponents of the law claimed that while the government can regulate the activities of people engaged in commerce, like the insurance industry, it cannot regulate someone's inactivity -- that is, someone's refusal to buy insurance. It's an argument the judge found persuasive.
The issue is not someones refusal to buy insurance. The issue is the unwritten, universal social agenda in this country and most of the world that if you are hit by a car (for example) and have 20 broken bones and internal bleeding, you will be taken to a hospital and attended to until you are well enough to leave with at minimum, a high probability of continued survival.
The issue here is not the refusal to buy insurance. The issue is the clear assumption that you will be treated regardless of whether or not you have it. While the uninsured may not be subject to regulation by a lack of voluntary participation in commerce I think a key argument might be that they are subject to regulation by an involuntary or presumptive participation in commerce at the time that they actually need it.
Here I submit an idea that I think we should encourage our Republican compatriots to propose as a House Bill as follows:
Add the option that you can opt-out of mandatory insurance by signing a waiver that should you be injured, spindled, folded or mutilated you refuse care on the public dime because you believe in smaller government and want nothing to do with the Socialist notion of emergency care for all.
I'm really kind of surprised that they hadn't already thought of this.
In closing, does anyone think that the reason that HCR was declared unconstitutional in toto rather than having the offending statute removed was anything other than a Republican (Judge) refusing to withhold from his constituency (Insurance Companies) the cookie that made them roll over in the first place?