There is no escaping that the big news item this week will be that President Obama’s healthcare legislation is up for review at the Supreme Court.
I have my personal opinions about the law in question, but no legal expertise upon which to offer any serous analysis of the issues relevant to events this week.
Instead, I’ll leave it up to the lawyers at Lawfare to share this interesting perspective from everyone’s favorite homeland security author, Philip Bobbitt:
The consequence of these developments is that the healthcare of all persons living in America is bound together: the protection of every American is no stronger than the weakest protection of any American. Yet the most frequent reason cited by persons who do not present themselves to hospitals for treatment is a lack of medical insurance. Without such presentment, medical authorities are unable to accumulate the data necessary to warn of a biological attack in the timeliest way. In the case of the anthrax attacks of 2001, the determining factor whether the victims lived or died was whether the treating physicians recognized the cause of infection. Unalerted, many did not; their patients died.
Basically, as Benjamin Wittes of Lawfare notes, ““it can be persuasively shown that Congress could rationally have concluded that [the law] was an appropriate method of providing for the ‘common Defence … of the United States.”
So Obamacare need not depend on the Commerce Clause, but instead the fact that health care is in fact a national security issue.
I can’t argue that, never mind prove it. But I do like the idea…