The case for Obamacare

After three days of arguments before the U.S. Supreme Court, the case for the constitutionality of the Affordable Care Act, better known as "Obamacare," remains strong. Four members of the court, including the justice expected to be the key swing vote on the issue, asked tough questions of the government's lawyer about the requirement that individuals obtain health insurance that is at the heart of the case against the law. But the inaptness of the comparisons they used to call the individual mandate into question reveal the uniqueness of the health insurance market and the propriety of Congress' decision to regulate it in the way it did. And even as the justices questioned whether Congress overstepped its powers, they risked doing the same.

The questions from Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Anthony M. Kennedy on the crucial second day of arguments were variations on this theme: If Congress can compel individuals to buy health insurance, what are the limits on its power to force people to enter into any other transaction?

Justice Roberts began the parade of false analogies by asking whether, by extension of the Obama administration's logic, Congress could require people to buy cellphones. The need to utilize emergency services such as the fire department or an ambulance is unpredictable, just like the need to pay for health care, he said. "So can the government require you to buy a cellphone because that would facilitate responding when you need emergency services?" Justice Roberts asked. "You can just dial 911 no matter where you are?"

But Justice Roberts' question deals with whether an individual has easy access to a service, and the individual mandate deals with how we as a society pay for a service, the regulation of which is proper under the Commerce Clause. We do not deny people immediate access to health care based on their lack of insurance. Emergency rooms provide care first and ask questions about payment later.

Justice Alito picked at the administration's contention that health care is unique because it is one service that we all use at one point or another in our lives. We will all be in the market for burial or cremation services at some point, Mr. Alito said, so can Congress compel us to buy insurance for that, too?

The difference here is that the costs for those who lack burial insurance are, except in rare circumstances, passed on to the deceased's heirs and relations, not society as a whole. There is not a substantial interstate market for burials, and there is no necessity for Congress to intervene, as in health care. The number of pauper's burials does not begin to approach the more than 40 million Americans who lack health insurance; nor does the burial industry consume 17 percent of the nation's gross domestic product, as health care does.

Justice Scalia mused that everyone is also in the market for food at one point or another and asked whether the government might also require people to buy broccoli. That analogy also misses the mark. The implication of Justice Scalia's question is that the individual mandate is a paternalistic effort by government to require people to do what's good for them. That is not its purpose at all. Its purpose is to prevent the shifting of costs to everyone else. Moreover, it was, in Congress' judgment, a necessary and proper law for carrying out other reforms that are clearly within its powers, such as prohibiting insurance companies from denying coverage to those with pre-existing conditions. Without the mandate, only those who are sick would obtain insurance, which defeats the purpose.

Much of the argument Tuesday centered around the conservative justices casting about for what bright line can be drawn to determine the extent of Congress' powers to regulate interstate commerce. But the court's long-standing interpretation of the Commerce Clause has been broad. Not every check on the power of Congress is constitutional; some are political. We are in the midst of a presidential election in which the incumbent has pledged to uphold and execute the Affordable Care Act, and all of his prospective Republican opponents have pledged to repeal it. The people will have the power to decide the appropriateness of this regulation at the ballot box, and that is the proper venue for it.

A similar confusion about the roles of the courts and Congress played out on the third day of arguments, when the justices heard arguments on the question of what parts of the law (if any) would survive if the individual mandate is ruled unconstitutional. The plaintiffs in the case argue that if the mandate goes, so must the entire law. The Obama administration contends that only the requirement that insurance companies not deny coverage because of pre-existing conditions and that they not charge higher premiums to those who are sick would need to go if the mandate is struck down. And a third-party lawyer argued that the mandate could be severed from the rest of the bill.

This much is clear from the debate over the legislation itself, the experience of states that have attempted reforms piecemeal, and from the arguments before the court: The Affordable Care Act would not work well without the mandate. In particular, the pre-existing conditions rule, absent a mandate, would cause insurers to exit the market or rates to skyrocket, or both. But the court's job is not to judge whether an action of Congress is wise or effective. The court's job is to decide whether it is constitutional. If striking down the individual mandate causes the rest of the law to operate in a way that Congress does not like, it is up to legislators, not judges, to fix it.

Despite the strong case for the Affordable Care Act's constitutionality, it is entirely possible that this court will intervene to strike down all or part of the law. For justices who have preached restraint, they have shown a willingness to interject themselves into policy debates in unexpected ways. But those who are rooting for the Supreme Court to strike down this method of addressing the health care crisis in this country should be careful what they wish for. Inasmuch as they expressed skepticism about the individual mandate, the justices voiced no such reservations about the constitutionality of a single-payer health care system.

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