On Saturday, August 24, from 11 am to 1 pm, Ryan Ripley, a libertarian (or is that Libertarian?) who hosts "The Shill Report" on Indiana Talks, will debate me on whether the Affordable Care Act is constitutional. Ryan debated in high school. We agreed upon a format in which each of us will give an opening argument, then proceed to polite interaction on several areas of focus. Ryan e-mailed to me areas he wants to address. (We agreed to make the discussion one of principles with focus on several areas.)
One area of concern is that Obamacare violates the principle of mutual agreement that underlies American contract law. An adhesion contract is one in which the party has no choice---the Don Corleone "gun to the head" arrangement. In this instance, presumably because a person either obtains health insurance or faces a penalty, the person has no choice. There are a couple of responses to this. First, the "social" contract whereby people consent to be governed is an adhesion contract, when one gets down to its essence. Unlike Socrates's teachings in "The Crito," when I reached the age of majority, I was not given the choice of accepting the State and its benefits or wandering off into the wilderness. There is no wilderness, for one thing. For another, I had to register for the draft (during a corporate "war", the one the United States waged in Vietnam). There one really has no choice. If one rejects the State, one faces prison. (Presumably one would refuse to register for the draft, refuse to pay taxes, and any number of things.) The premise of the State is an adhesion contract. Even if one grants the argument ACA (Obamacare) presents one with an adhesion contract, that, it could be argued, is the basis of the State anyway. Second, one does not have to sign a contract for health insurance. One need only pay the penalty. The percentages on that penalty are fairly low, compared to premiums for private health insurance now. (Once the health insurance marketplaces open on October 1, I think those rates will drop. I've seen much lower premiums offered, but am not eligible until October 1.) If a person chooses "self-insurance," that person pays---get ready, I am about to quote Chief Justice Roberts, a native-born Hoosier---what amounts to a tax. And why not? I know of one person who maintained a post office box in Nevada to be eligible for that State's income tax (none) and yet lived here and took advantage pf hospitals.
A second area of concern is that the Framers never intended the Commerce Clause (as a basis for ACA Chief Justice Roberts rejected) to have the power to regulate commerce in each state. First, the Court has recognized (as long ago as the 1890s; definitely not left-wing Justices on that Court) that the Commerce Clause allows regulation of intrastate commerce if it has a tendency to affect interstate commerce. Second, the Civil War and the amendments that were adopted in its wake, gave this country a new concept of the role of the central government and "federalism." Finally, the Framers wrote the Constitution in 1787, when "health care" was provided by doctors who doubled, many times, as barbers. There were few, if any, hospitals. They created a Constitution elastic enough to grow with the commerce that would spread across the continent they saw before them (all the way to the Mississippi River), but not pliable enough to abolish the slave trade. If health care had been the behemoth then it has become now, we probably would have seen another clause in Article I that dealt with health care as an enumerated power, especially when one considers Franklin's gout and Washington's ongoing problems with his teeth. (Yes, dental would have been covered.)
Those are two of four areas Mr. Ripley has addressed. This gives him insight to my arguments for Saturday. The debate will be polite. It also should be enlightening. We will have a place for the debate in the next day or so. He will call in, but there will be a speaker on this end for folks who want to listen.