CHRISTMAS WAS looking good for President Obama last night. The two-thirds majority he needed to see through the new Start arms control treaty seemed secure, capping a successful four-day end to Congress’s term. Over the weekend he saw through the repeal of the ban on open gays in the military – “don’t ask, don’t tell” – and, to the chagrin of many Democrats, the extension of Bush-era tax cuts that will help to restore credibility to his bipartisan ambitions.
It was not such good news for the president last week, however. An important ruling by a Virginia federal court, if confirmed by the conservative supreme court, may yet have put a fatal hole in his flagship healthcare reform. At issue, and one that may well be vexing Irish citizens soon if Fine Gael and Labour are returned to office, is the healthcare Act’s most unpopular feature, a “tyrannical” requirement on citizens to buy health insurance whether they want to do so or not, or pay a fine. Has Congress exceeded its constitutional prerogatives?
Unable, despite recent gains, to do more than chip away at the legislation in Congress, Republicans are now relying on the courts and see the ruling – there are 25 more cases in the pipeline – as a blow to another conservative bête noire, the courts’ permissive interpretation of the constitution’s “Commerce Clause”. That permits the federal government to regulate interstate commerce, and since the 1930s New Deal has been interpreted to allow it wide room for manoeuvre, much as the EU has expanded over time its own legal “competences”.
Central to the current case – it being agreed that health insurance constitutes “commerce” – is whether the act of not buying insurance is itself an economic act. Yes says the administration; the citizen is consciously making a choice that, in the event of being run over by a bus, he/she will pay for healthcare out of pocket. And the right of the authorities to require drivers to have car insurance has never been challenged.
No, says Virginia; “inactivity” is beyond Congress’s remit. And car insurance is not a valid analogy because people are not required to buy a car. Virginia federal judge Henry Hudson agreed, insisting during the hearing that the government’s position would give Congress “boundless” authority to force citizens “to buy an automobile, to join a gym, to eat asparagus”. Improbable as that may be. He struck down only the mandatory element of the Act, although that will still undercut much of the legislation’s purpose in expanding healthcare access while holding down costs.