Accidental Blogger

A few quick thoughts:

1.  Calling it "ObamaCare" is demeaning and stupid.  There's no possible universe in which that's even decently descriptive, if accuracy is any (not even the) goal.  (This is similar to my objection to referring to George Tiller as an "abortion doctor.")  I'm not sure if this is a smart political description: it may lead to negative impressions of the new health care world order, but it also may lead to negative reactions to the speaker (of the term "ObamaCare") who is not taking things seriously.

2.  Calvin Massey (who I previously called out for making himself look like an idiot–and not the Ezra Klein type–with his comments on the Skip Gates affair) comments here.  Most interesting to me is his insistence that a (federal) government mandate to citizens to purchase health insurance is a nontrivial, nonjustifiable intrusion on human liberty.  Oh no, you have to purchase a minimal level of health insurance!  Seriously?  What does that say about the conservative mind?  (And from a law professor who, due to his financial position, would never consider not having health insurance anyhow!)  If made in good faith — and there are good reasons to think this assertion is not made in good faith, for instance the underlying federalism concern of the post, which would have to accept a state-initiated mandate (which reminds me, again, that libertarianism and federalism are inconsistent, although no conservative will ever admit this) — then the conservative mind is a neurotic, disturbed, even insane place.  If not made in good faith, then of course it coincides nicely with the theme/claim running through this blog for the past four (?) years that conservatives act/argue in bad faith.

3.  Law geek types are discussing the constitutionality of major health care reform.

• Calvin Massey: it (the health insurance mandate on its own) is, or at least should be, unconstitutional.
• David Rivkin and Lee Casey: it is unconstitutional under current law, "even under the most aggressive commerce clause cases."  [Ed.: this is pretty clearly wrong as a doctrinal matter; it's an all-around ridiculous op-ed — see also Orin Kerr: "Given Rivkin & Casey's views of the Constitution as seen in their
  past op-eds, I assume they think the only way health care reform would
  be constitutional is if the President ordered it under his Commander in
  Chief power."]
• Jack Balkin: of course it's constitutional; the battle over the New Deal has already been fought and decided in the courts.
• Jonathan Adler (a conservative at the Volokh Conspiracy): it's plainly okay under Supreme Court case law.
• Sandy Levinson: from a political science perspective, the courts just won't fight this; there definitely won't be five votes. [Ed.: ding ding ding! we have a winner!]