In today’s Journal, Professor Blinder enlightens us with some of these gems:
That’s where economics and law collide. Economically, the individual mandate and insurance reforms form an unbreakable pair. Legally, they are separate. So the mandate could be ruled unconstitutional while the insurance reforms are not. After all, there is no question that health insurance is interstate commerce, and no question that the federal government can regulate interstate commerce
Well, if you take a very Wickard v. Filbrun”ian” view of the world there is no question. But insurance companies are legally not permitted to sell insurance across state lines. So the health insurance market is most certainly NOT interstate commerce. But never mind – if a distinguished professor says it, that must be true. We are all scientists here ya know.
So what happens if the justices void the mandate but leave the insurance reforms in place? The answer is: We get incoherence. Which, of course, is why you don’t want judges making economic policy.
Get the fire extinguishers ready! So judicial review of legislative actions is akin to the court making economic policy? Would Blinder rail against the Brown v. Board decision on similar grounds? After all, it dramatically altered the way that education is delivered in this country? The simple fact is that Congress wrote an idiotic 2,200 page law. They could easily have pursued a mandate-like program within the bounds of the already elastic constitution, but they did not. If the judges strike down the law, it does not prevent Congress from rewriting it in accordance with constitutional principles. But I am so sorry that Mr. Blinder finds it inconvenient to have to deal with that pesky piece of paper when it impedes his grand vision. You know, Madison and the guys should have made this whole thing a lot easier, right?
This is another real shame. If we are going to have political decision-making, at least elected politicians should do the deciding. Come to think of it, they already have.
Against the “will” of the majority I would mind you. And come to think of it, if we are going to have political decision-making, at least elected politicians should do the deciding. I agree. So I look forward to Mr. Blinder’s next Op-Ed about the Fed and its independence, about the FDA and the EPA and the FCC and the FTC and all of the other agencies which make rulings, sometimes over huge portions of the economy, without any accountability either. I’ll even help Mr. Blinder write it.
Still more fires to put out, but we must be content with this for now.