Justice Scalia’s moral insensitivity took on special proportions during the oral argument on the Patient Protection and Affordable Care Act. Opponents of the Act including Paul Clement before the Supreme Court argued that the Commerce Clause entitles Congress to regulate activity but not inactivity and, therefore, requiring people to buy health insurance regulated their inactivity and was beyond the reach of the Commerce Clause. This is a dubious argument. For example, for many years the National Labor Relations Act enacted by Congress under the Commerce Clause has mandated that members of bargaining units pay unions for bargaining on their behalf even if they are ideologically opposed to unions and the subjects bargained for on their behalf. That their inactivity of not paying dues has been the subject of the requirement has long been thought to raise no Commerce Clause problem. First Amendment challenges to this mandate have been rejected as well except when the union is using the money for political purposes instead of collective bargaining. Of course, the Taft Hartley Act has since provided that states generally may prohibit a mandate in their jurisdiction. But this concession to federalism is constitutionally permitted. It does not speak against the constitutionality of the union dues mandate. If it did Congress would not have had the power to pass the mandate in the first place.
Is there a distinction between the union mandate and the health insurance mandate? Some Republicans argue that you can avoid the mandate by not working, but short of death, you cannot avoid the health insurance mandate. True from a formal perspective that ignores the importance of working, but from a Commerce Clause perspective, so what?
In response to Clement’s argument, Solicitor General Verrilli argued that regulation was necessary and proper under the Commerce Clause because unlike other markets, federal law requires that those providers of hospital services receiving Medicare or Medicaid funds (i.e., virtually all hospitals) must provide emergency care to all regardless of ability to pay. From this perspective, it makes sense to require that persons able to purchase insurance do so. And as Verilli observed, the requirement to provide care flows from ”the social norms to which we have obligated ourselves.”
Enter Justice Scalia with a breathtaking response even from him. Scalia triumphantly replied, “Well, don’t obligate yourselves.” This week’s Commonweal editorial response is dead on, “The implication of Scalia’s remark was chillingly clear: if victims of car accidents arrive at the emergency without insurance, hospitals must be allowed to let them die on the curb . . . .”
Regrettably, Scalia is not alone. One can still hear the echoes of the applause heard in Republican primary debates when sentiments similar to his were expressed by a Presidential candidate. An odd group those Republicans. They deny Darwin’s biology of natural selection. But social Darwinism is increasingly popular. They claim to be Christians. But what kind of Christian applauds at the failure to help the sick and the poor? I really don’t know. I do think it is sad and somewhat frightening that Christianity has been so seriously perverted by so many people.