Simply put, the legal debate over Obamacare largely centered on the individual mandate, a law that would require people to buy health insurance whether they wanted to or not.
A little to my surprise, the Supreme Court did uphold it, although as a tax.
During the passing of the healthcare law, it seemed that the president assumed that the government had the ability to force people to buy a product from a private company that they did not necessarily want.
The mandate’s survival in the Supreme Court on a much narrower standard apparently leaves the question far from settled.
I felt that there was little, if any, constitutional analysis done by the president and his team when they decided to pass the mandate, except for the fact that they perceived a compelling need for it.
And that’s how the debate over the healthcare law reminded me of the legal debate during the foreclosure crisis.
Back when I started defending homeowners, the judges took a simple view: You borrowed the money, therefore you owe the money, so you have to pay it back.
No one stopped to think whether the banks bringing these foreclosures had the constitutional right to do so.
No one asked whether the banks had fulfilled their legal requirements before filing suit, such as properly assigning notes and knowing who owned the mortgage.
Instead, there was a preference for expediency. Since the homeowner borrowed the money and owed the money, the homeowner had to pay. The banks would be able to sort out who actually owned anything among themselves, and the most important thing was to get the home away from the homeowner.