As it turns out, it turns on timing,...

the constitutionality of health care reform, that is.

The 11th Circuit Court of Appeals heard arguments on “Obamacare” yesterday. Most of the time was spent on the “individual mandate” which would make us buy insurance or pay a “fine” to be collected by the IRS. The Government argues that the requirement is constitutional under the Commerce Clause, which says “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes….”

The question for the Court is whether people are “engaged in commerce,” which Congress can regulate, while sitting in their living rooms and refusing to buy health insurance. Paul Clement, representing states and individuals opposing the law, said they weren’t. But then he conceded that a broke and bleeding person on a hospital doorstep that didn’t have insurance could be forced to buy it before he was treated. At that point, seeking health care, he was “engaged in commerce.” By that logic, a person sitting in his living room, suffering a heart attack while doing nothing, runs afoul of Congress’ power and engages in commerce when he dials 911 for an ambulance. What if he does nothing and his neighbor makes the call for him?

This debate seems to be a matter of form over substance. No one argues that Congress could increase income tax rates by whatever percentage was necessary to pay for a national health care plan. Congress, in its wisdom or folly, decided that everyone needs to have health care. Wisely or foolishly, it devised a plan to pay for it.

This is exactly the kind of issue that judges do poorly at and are always required to deal with when politicians are divided.

Conservatives are always arguing that “the will of the people” should prevail until that will, as expressed in a law they don’t like, comes to their attention. (I’m not saying Liberals haven’t done the same thing.) Conservatives didn’t have the votes last year to stop Obamacare and don’t have them this year to repeal it.

Maybe, just maybe, if the people in Congress decided to talk to each other and stop engaging in brinksmanship they could come up with a better way to deal with everyone’s need for health care. If pigs could fly….