Ronald Dworkin, "Why the Health Care Challenge Is Wrong": Really? Let's Talk Turkey (and Broccoli)!

Yesterday, Maureen Dowd slimed the conservative Supreme Court justices over their objections to the Affordable Care Act, i.e. Obamacare (see: http://jgcaesarea.blogspot.com/2012/04/maureen-dowd-men-in-black-pot-calls.html), labeling them "hacks dressed up in black robes." Her New York Times opinion piece barely touched upon the issues, and one can only wonder whether her ire was aroused by the underlying constitutional law issues, which are plainly beyond her ken, or by the prospects that one of the few "achievements" of the current administration might be nullified months prior to the November presidential election.

However, there are persons more knowledgeable than Dowd arguing that this legislation should not be overturned. In "Why the Health Care Challenge Is Wrong" (http://www.nybooks.com/blogs/nyrblog/2012/apr/02/why-health-care-challenge-is-wrong/), which appears in The New York Review of Books blog, law professor Ronald Dworkin writes:

"The prospect of an overruling is frightening. American health care is an unjust and expensive shambles; only a comprehensive national program can even begin to repair it. If the Court does declare the Act unconstitutional, it will have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically viable remedy—not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion the strict and arbitrary language of an antique Constitution denies our national legislature the power to enact the only politically possible national program."

Note how this paragraph conflates an admixture of economics and law. Yes, "American health care is an unjust and expensive shambles;" yet I think it is presumptuous to say that only a "comprehensive national program" can improve it. Moreover, I think it is foolhardy to declare that Obamacare is "the most effective, efficient, fair, and politically viable remedy" that Congress could devise, given that this legislation was passed by a slim margin in the House (219-212), and given that a plurality of Americans favor its repeal (see: http://www.gallup.com/poll/150773/Americans-Tilt-Toward-Favoring-Repeal-Healthcare-Law.aspx).

Far more objectionable, however, is Dworkin's reference to an "antique" Constitution. (I don't know if I am more offended by Dowd's reference to the conservative Supreme Court justices as "hacks," or by Dworkin's reference to the Constitution as "antique.") If the Constitution is "antique," perhaps the oath of office of American presidents should no longer require them to "preserve, protect and defend the Constitution."

But let's get back to broccoli. Claiming it is possible to "distinguish health care and insurance from broccoli and electric cars," Dworkin writes:

"Neither the Constitution’s language nor that principle distinguishes between negative and positive regulation of commerce, between prohibition and mandate. The principle does require that Congress show that the commerce it seeks to regulate has a profound impact on the national economy. National regulation of health care plainly passes that test."

Oh really? If Americans were forced to eat broccoli instead of Cheetos, Twinkies and nitrate-saturated frankfurters, I would wager that we would see a marked decline in obesity, cancer and heart disease, which in turn would have "a profound impact on the national economy."

Now let's take this a step further: If Congress were to mandate breakfast, lunch and dinner menus for all Americans, my guess is that health care costs would plummet, but do we want to go there? Or more to the point, does America's "antique" Constitution permit this?

Dworkin argues:

"The rhetorical force of their examples, about making people buy electric cars or broccoli, depends on a very popular but confused assumption: that it would be tyrannical for any government to force its citizens to buy what they do not want. In fact both national and state governments steadily coerce people to do just that through taxation: they make them buy police and fire protection and to pay for foreign wars whether they want these or not."

But Dworkin fails to observe that whereas state and local governments correctly assume responsibility for police and fire protection, they cannot and should not take responsibility for national defense. In fact, herein lies the question: Whether the federal government or state governments should take responsibility for health care. According to a February 2012 Gallup poll, "Americans overwhelmingly believe the 'individual mandate,' as it is often called, is unconstitutional, by a margin of 72% to 20% (see: http://www.gallup.com/poll/152969/Americans-Divided-Repeal-2010-Healthcare-Law.aspx), and I believe there is merit to the conviction of this sizeable majority, which obviously believes that control over health care need not and should not reside with a monolithic federal government incapable of efficacy and economy.