Well That Settles It! Zeke Emanuel on 'Morning Joe': 'No Credible' Scholar Doubts ObamaCare's Constitutional

March 22nd, 2012 4:21 PM

On Thursday’s edition of Morning Joe, Zeke Emanuel, former health policy advisor for President Obama, completely distorted and misrepresented the controversy surrounding ObamaCare, and found no pushback from the Brew Crew, naturally.

Emanuel started out the segment making the ridiculous claim that no "credible legal scholar" would doubt the constitutionality of the individual mandate in ObamaCare.  [See video below.  MP3 audio here.] 

In doing so, Emanuel dismissed the judicial wisdom of, among others, all the federal judges who have found ObamaCare unconstitutional. Included in that number is Judge Frank Hull, who was appointed by Bill Clinton.  Then there's former Bush solicitor general Theodore Olson, no intellectual lightweight he, who has filed an amicus brief with the Court in which he attacked the individual mandate as unconstitutional. The Left has lauded Olson for his work trying to overturn Calfornia's Proposition 8 in the federal courts. And as Reuters has reported, there's at least one Nobel Prize laureate who has joined a brief with the Court opposing the individual mandate. A full list of all the amici briefs can be found at SCOTUSblog.

The absurdity continues as Zeke argues that given the Commerce Clause, Congress can essentially do anything it wants, including forcing individuals to buy a certain product.  Emanuel cynically brought up the use of the commerce clause to enforce desegregation of restaurants. The implication apparently is that health care is not merely that health care is a civil right, but that it's a right which must be enforced by the heavy hand of government intruding on every American's fundamental right to be left alone and not forced to buy products they don't wish to buy.    

See the relevant transcript below.

Morning Joe
7:23 a.m.

MIKA BRZEZINSKI: All right. That was the President almost exactly two years ago as he signed the health care bill into law. Here with us now, former White House adviser for health policy and University of Pennsylvania's Vice Provost of Global Initiatives and chair of the Department of Medical Ethics and Health Policy at U-Penn's Pearlman School of Medicine, Dr. Zeke Emanuel. You officially have the longest title of anyone who has been on the show.

ZEKE EMANUEL: They give you titles because they don't give you anything else, no power, no money.

BRZEZINSKI: What else do I need to say? Is there a list I need to read?

EMANUEL: My brother. You'll mention my brothers in a second.

BRZEZINSKI: You know what I’m going to lay off your brother. He makes me tired.

EMANUEL: Where's Joe?

BRZEZINSKI: He makes me tired too.  Where is Joe?  

EMANUEL: He’s afraid that I’m here.  He decides I’m not showing up.    

BRZEZINSKI: Let me ask you this. We have two years now to this being signed into law, and we are going, headed to the Supreme Court. So the fate of the individual mandate, can you give us a prognosis?

EMANUEL:  I have two very large bets with Ronald Pearlman and another billionaire that this is gonna be upheld. It's definitely constitutional. I think there's no, no credible legal scholar that doubts it. The commerce clause allows Congress to do anything necessary and proper to maintain the market. And they will uphold it.

MIKE BARNICLE: For the economically illiterate, which would include me, could you please explain what is the problem with the mandate? Why is it --

BRZEZINSKI: What's the argument at stake?

BARNICLE: What's the argument at the supreme court about?

EMANUEL: So the argument is that Congress shouldn't force people to buy something that they otherwise wouldn't want to buy. And health insurance being something which many Americans or some Americans can't buy. And the claim is Congress cannot force you to do that. But the fact is, we know in the insurance market, if everyone doesn't buy, the insurance markets collapse. We have had a lot of exchanges around the country that have tried on a voluntary basis to have people purchase, and they always collapse because the people who end up buying are people who are sick. The people who are healthy find it too expensive so they stay out. The price goes up. Then the people who are just at the edge, healthy, they come out. And so you end up collapsing because the only sick people are in the market. To have a stable insurance market, you need everyone in, and that's what the mandate helps assure.

BRZEZINSKI: But the argument seems to make sense. You shouldn't have to buy something you don't want to buy. But let me ask you, is there a precedent for this argument?

EMANUEL: There are plenty of precedents.

BRZEZINSKI: Okay, so what are some of the key ones?

EMANUEL: George Washington required people to have guns. In the 1960s, the Supreme Court with the commerce clause required people who owned hotels and restaurants who didn't want to serve blacks to serve African-Americans because they wanted -- they said it was part of interstate commerce and you couldn't discriminate. And so I think there are many, many precedents. This is not actually unusual. Plus, we require people to get vaccinated. We were just talking about vaccines. We require people to get vaccinated partially for their own protection but also partially because it protects other people. If you are vaccinated, it reduces the chance that the virus will spread around the country.

BRZEZINSKI: Jeff Greenfield.  

JEFF GREENFIELD: The argument on the other side is that -- and I don't want to get too wonky here, but they use the commerce clause rather than the taxing power to justify this. The taxing power clearly lets the Congress pretty much do anything. And the argument which one of the, some of the lower courts have embraced is this is inactivity. If not to participate in the health insurance market. The counterargument is, look, we just don't know when you might participate. If you don't have insurance and you get sick, you go to an er, they have to treat you, which raises the cost of health care for everybody. And that's going to be -- most people think that's the most powerful argument in favor of using the commerce clause to say, ok, congress can mandate this. The problem is that this more recent Supreme Court for the first time since the new deal -- and when I say this court, i mean over the last 10 years -- has on a couple of occasions said to the Congress and the President, you have exceeded the reach of the commerce clause.

EMANUEL: But look, even Justice Scalia, my friend, has written that the last part of the commerce clause says Congress can do anything necessary and proper to effectuate its powers. Necessary and proper he says is vast powers of Congress.

GREENFIELD: This is what were going to come down to. It's been a long time since i was in law school,

EMANUEL: And I’ve never been there.    

GREENFIELD: and I never had a practice. But I do think that it's not that clear that this supreme court and how it reads the constitution and the scope of federal power is that prepared to embrace this argument.

EMANUEL: Well, this just isn't conservatives because you have Charles Freed, who was a solicitor general under Ronald Reagan. You have the justice who was Silverburg --

GREENFIELD: Silverman.

EMANUEL: I'm sorry, Silverman, at the D.C. Circuit, all saying that this is clearly within the scope of Congress' power.