Thursday, October 07, 2010

Legal Lollapaloza: Health Insurance, Medical Marijuana & The High Court

I apologize in advance if this post makes your head explode. It nearly did mine, but I was determined to try to make sense of Republican efforts to castrate the individual mandate provision that is at the heart of the health-care reform law.

The individual mandate, for those of you who have spent
the past year in a cave or a coma, is a requirement that all individuals who can afford health-care insurance purchase at least a minimally comprehensive policy. If individuals aren't insured, they must purchase insurance or pay a small fine beginning in 2016, although there is widespread agreement that the fine will be unenforceable.

The reason for the mandate is simple: It brings
healthy people into the insurance pool, which in theory keeps costs down and ensures that people don't game a system that forbids insurers from discriminating against people with pre-existing conditions by waiting until they get sick to get insurance.

The . . . uh, weapon of choice for many Republicans opposed to health-care form in general and the individual mandate in particular is the Commerce Clause, a constitutional provision giving Congress the right to regulate commerce among the states. But where opponents are trying to get traction is, of all things, is the 2005 Supreme Court decision outlawing the sale of medical marijuana in California. That, in fact, is at the heart of a court challenge to the mandate in Virginia.

But the decision --
Gonzalez v. Raich -- is a curiosity, albeit just one of many foisted on the republic by a high court that has tacked hard to the right through bizarro constitutional interpretations, in this case of the Commerce Clause.

The Chief Justice Roberts-led majority declared that Congress' power to regulate interstate commerce gives it the power to ban possession of medical marijuana that never crossed state lines, and health-care reform opponents argue that by that token the courts and Congress have the right to outlaw the individual mandate.

In an earlier era, efforts to use the Commerce Clause, let alone a ruling like Raich, to go after health-care reform probably would have been laughed out of court. But we live in a time when the high court and Congress are slavishly beholden to the interests of Big Business, which makes the passage of Obamacare, even in it is considerably watered-down form, something of a miracle.

As well as leaves it vulnerable to the very special interests and their legal and legislative handmaidens who oppose it.

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