BrianGarst.com

Don’t want to be forced to purchase government-approved health insurance? Worry not, the Obama administration has an easy opt-out (Hat-tip: Committee for Justice):

During the Sixth Circuit arguments, Judge Jeffrey Sutton, who was nominated by President George W. Bush, asked Kaytal if he could name one Supreme Court case which considered the same question as the one posed by the mandate, in which Congress used the Commerce Clause of the U.S. Constitution as a tool to compel action.

Kaytal conceded that the Supreme Court had “never been confronted directly” with the question, but cited the Heart of Atlanta Motel case as a relevant example. In that landmark 1964 civil rights case, the Court ruled that Congress could use its Commerce Clause power to bar discrimination by private businesses such as hotels and restaurants.

“They’re in the business,” Sutton pushed back. “They’re told if you’re going to be in the business, this is what you have to do. In response to that law, they could have said, ‘We now exit the business.’ Individuals don’t have that option.”

Kaytal responded by noting that the there’s a provision in the health care law that allows people to avoid the mandate.

“If we’re going to play that game, I think that game can be played here as well, because after all, the minimum coverage provision only kicks in after people have earned a minimum amount of income,” Kaytal said. “So it’s a penalty on earning a certain amount of income and self insuring. It’s not just on self insuring on its own. So I guess one could say, just as the restaurant owner could depart the market in Heart of Atlanta Motel, someone doesn’t need to earn that much income. I think both are kind of fanciful and I think get at…”

First of all, I think the court got Heart wrong. Private businesses and individuals (unlike government) do have the right to discriminate for whatever reason they please, disgusting as some of those reasons may be – and we recognize a similar right to disgusting political speech. I also disagree with the typical leftist refrain which holds that, without such judicial findings, discrimination would still run rampant. I don’t think the courts were the real catalysts at all, but rather reflected already changing social mores. Courts rarely, if ever, jump out in front of political attitudes. This is not to say that they serve no purpose, but they tend to reflect popular opinion, or emerging popular opinion, more than they create it.

But let’s get back on topic.

This is a rather remarkable admission that the administration will no doubt be forced to start walking back. Obamacare is “a penalty on earning a certain amount of income and self insuring.” Maybe I’m just crazy, but aren’t these things we ought to be rewarding? Why are we penalizing people for being productive members of society, or being responsible enough to prepare for their own health needs? This kind of attitude toward productivity certainly goes a long way toward explaining the current economy.

obamacare