Thinking Out Loud – When is a Law not a Law?

The Patient Protection and Affordable Care Act, better known as “Obamacare,” is now before the Supreme Court, which must decide whether it passes constitutional muster.  At the heart of this constitutional controversy is Obamacare’s “individual mandate,” which requires all individuals and organizations to purchase health insurance, or pay a stiff fine.  That mandate rests on the Constitution’s “Commerce Clause,” which gives Congress the power to regulate economic activity.  But does it also give Congress the power to compel economic activity?  Can Congress force citizens to purchase a product they otherwise would not want to purchase?  “If Congress has that power,” say those who think Obamacare is unconstitutional, “then Congress has unlimited power,” which is antithetical to the Constitution, which only gives the federal government a finite number of limited powers.

And so the battle rages, including the battle over what will and will not be covered under Obamacare, what it will cost, and so on.

But I have another question?  The Patient Protection and Affordable Care Act is 2,700 pages long.  How can a piece of legislation that is 2,700 pages long qualify as a law?  Yes, Congress passed it (without one single vote by Republican members of the House of Representatives), and President Obama signed it into law.   But, by definition, any legislation of that length cannot possibly pass the first test of a law as understood by our Founders when they created the Constitution in 1787, and as understood by the Constitution’s 14th Amendment when it was ratified in 1868.   A law must treat all citizens equally.   The 14th Amendment is very clear:  no law can deny any U.S. citizen “equal protection.”

It does not take 2,700 pages to describe the equal treatment of all citizens.  It takes 2,700 pages to describe the law’s myriad clauses, subsets, codicils, exceptions, addendums and regulations, plus the various bureaucracies that will determine and administer them.   To give one example, Obamacare includes what are called “Ethics Panels,” which will determine, depending on a patient’s age, whether that patient can receive certain medical treatments, including surgery.  That is clearly age discrimination and unequal treatment.  (And begs the question:  If, under Obamacare, a 75-year-old person suffers a heart attack, can doctors respond immediately, or do they first need approval from the Ethics Panel?)

To that end, on Mark Levin’s radio show recently a neurosurgeon called in to report that he had just read Obamacare’s provisions on coverage of brain surgery, only to discover that such surgeries for patients over 70 are also subject to the whims of an Ethics Panel (consisting of bureaucrats, not doctors).   Actually the language in that section of this 2,700-page “law” does not call them “patients” at all.  It calls them “units.”