Saturday, January 7, 2012

Health Care Reform Is Up to the Supremes

Sitting here in the bowels of Libby Gardner Hall at the University of Utah waiting for my son at Utah Youth Symphony practice, I had a chance for this posting on Health Care Reform before the Supreme Court. (I may be sitting on the very couch in the student lounge that was honorarily named for another son after he spent much of his freshman year here!)

On behalf of all the people of the United States, the Department of Justice filed its brief yesterday in the Supreme Court on the ACA. (Health Care Reform or "Obamacare" as some of you call it, eventually to be a compliment rather than the derogatory term you may be intending). Here is a good article from Andrew Cohen of the Atlantic on it with a link to the brief itself which looks really, really, good. For a summary of the opposition briefs that are piling on, you can check it out here or here.

The drafters of the DOJ brief carefully targeted the Justices in an attempt to hold them to previous decisions in the grand tradition of stare decisis or judicial precedent (the basis for the common law and much of our Constitution). And I like the emphasis on the regulation of health care, not merely insurance, as an aspect of Interstate Commerce. And I really like the historical perspective including specific references to Republican developments and proposals over the years like the Heritage Foundation/Gingrich mandates.

In arguing (as I have) that it is the commerce of health care being regulated, not the buying of insurance per se, the DOJ came up with this:
Congress’s decision to require insurance in advance, rather than attempting to apply a minimum coverage provision at the point of consumption, was particularly reasonable in light of the economic realities of insurance (which must be obtained before the need to use it arises) and the well-established legal dutyof health care providers to provide emergency care regardless of ability to pay (which makes restrictions at the “point of sale” infeasible as well as inhumane).
DOJ Brief, at 20. The argument honestly addresses the very compromise in the mandate that was the only way to get health care reform to the extent we got it. That is, the middle road rather than the extremes of the right (markets-only solution) or the left (universal single payer) whatever your preferential leanings:
. . . the Act closes a gap that has undermined Congress’s longstanding system of regulation and financial incentives in the health care market and that has impeded the ability of millions of Americans to obtain services in that market. The minimum coverage provision is key to the insurance reforms that were designed to fill that gap.
 DOJ Brief, at 32. This is real smart as a major thrust of the opposition briefs is to argue that the law can't survive the loss of the mandate (Circuit Courts have gone both ways) necessitating that the whole law be thrown out.

In further development to counter the argument that the Act is some onerous imposition on the non-action of people who chose not to buy insurance, the DOJ brief gives this pretty good argument:
Whether or not an individual receives health care services in any specific time period, he or she is always atrisk of needing such services. Those who go without insurance to cover that risk—i.e., who self-insure, but only for those medical expenses they will be able to afford—do not just shift future costs incurred when they later consume health care for which they cannot pay. They also shift present risk to other market participants, which is monetized in the form of higher insurance premiums now, not later, for those with insurance. The point of obtaining insurance is to internalize risk, which occurs when the insurance is obtained and the premium paid. Conversely, the failure to obtain insurance externalizes risk, and that externalization occurs at the time the insurance is not obtained. Moreover, the costs not paid by the uninsured and instead absorbed by others contribute to maintaining the ongoing viability of hospitals and other components of the Nation’s health-care delivery system, which nonetheless will be available to the uninsured when they need them.
DOJ Brief, at 51.  

This last argument may get right at the heart of the philosophical/psychological differences of the conservative (libertarian) vs. liberal viewpoints in the way we may see the world and our place within, or at least within our society of fellow citizens. Probably too deep to go into here, but something maybe to think about. Yet, I still think the Commerce Clause is broad enough to regulate such activity  among us citizens.

Good luck out there all you original-intenters! Your arguments might have actually worked, say, before 1860, maybe 1937 (the "switch in time that saved nine" and FDR's New Deal). But history and our Constitution are a bit farther ahead of you now.

I will prepare myself for any reversal and a return to Constitutional dark ages. I just don't think it will happen.


  1. I don't think Obamacare gets struck down either.

    But although both sides phrase their arguments in terms of cost-shifting and pre-entry regulation, what's really going on here is an argument over whether principle of federalism can be enforced through the courts. And it's a significant question not easily settled by resort to favorable precedent.

    I think conservative arguments are better than liberals want to admit. Despite the existence of strong precedent and 75+ years of judicial deference (with a minor blip in 1995), judicial sanction of Obamacare's individual mandate amounts to an express judicial admission of the fact that the Supreme Court is just not going to do anything to stop Congress when it comes encroaching on the authority of the states (the Supreme Court opinion won't be written that way, but that's what it is). That's a big step, and I have a feeling that, if this wasn't such a politically explosive issue, you'd probably see a mandate like this get struck down.

    Although I'm not completely comfortable with the Supreme Court abdicating an area of constitutional law like this, I like it better than the alternative -- which would be a signal that federalism could be used as a tool for what amounts to nullification.

    By upholding Obamacare's individual mandate (as I suspect it will), the Supreme Court will send a message that it won't allow federalism to be used to subvert the political process when individual rights aren't at stake. That's why I, as a moderate federalist type, can live with a political check when it comes to federalism.

    In my view, the Court's primary role is to protect individual rights. And states aren't people. To paraphrase Madison, the Constitution wasn't created so that the states could be arrayed with the rights of a co-sovereign. And when we start striking popularly elected laws in order to preserve the ability of states to legislate in certain spheres, I've think we have lost sight of that fact.

  2. Thanks, Curt. OK. I can see your big-picture point too that this is an extraordinary step in diminishing a sense of "federalism" which may be one reason why the political right is so upset. But that step is still only using the Court to recognize the reality that this Constitutional Union is not what the founders originally established with their deference to the existing individual states which I think was more of a practical matter of selling a national Constitution rather than a necessary or somehow "inspired" principle of such. And I admit they probably didn't really understood it that far whatever their intent was. But Lincoln did.

    And I see your point about individual rights. With a few exceptions, history has shown that the federal government has generally been the best protector of individual rights and the states or local governments, the worst. Not that we don't continue our eternal vigilance with all levels of the people's government. And this administration certainly has its room for improvement.

  3. I agree. I view our federal structure as more a matter of necessity to establish the union than a principle that was consciously and affirmatively sought. My main point was that I certainly don't view on it the same level as the individual rights guarantees by the Bill of Rights, which need judicial protection from the government action.


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