Roving thoughts and provocations

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Why the Health Care Challenge Is Wrong

Franz Jantzen
The US Supreme Court Building

The Supreme Court’s hearings in the health care case, Department of Health and Human Services v. Florida, over a nearly unprecedented three days of oral argument, generated all the attention, passion, theater, and constant media and editorial coverage of a national election or a Super Bowl. Nothing in our history has more dramatically illustrated the unique importance of courtroom drama in American government and politics as well as entertainment.

The plaintiffs have asked the Court to declare the Affordable Care Act (the Act) unconstitutional. The political and social stakes are enormous, but the legal issues, most analysts think, are not really controversial: the Constitution’s text, the Supreme Court’s own precedents, and basic constitutional principle seem obviously to require upholding the act. Many legal scholars predicted a 7-2 decision rejecting the challenge. But they apparently misjudged the dedication of the ultra conservative justices, whose questions in the oral argument have now convinced most commentators that on the contrary, in spite of text, precedent and principle, the Court will declare the Act unconstitutional in June, by a 5-4 vote.

That prediction may be too swift. There are reasons at least to hope that Justice Anthony Kennedy, often the swing vote between liberals and ultra conservatives, will have sufficient respect for Congressional authority to save the Act. (I discuss these reasons in an expanded version of this piece, which will appear in a coming issue of The New York Review.)

The prospect of an overruling is frightening. American health care is an unjust and expensive shambles; only a comprehensive national program can even begin to repair it. If the Court does declare the Act unconstitutional, it will have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically viable remedy—not because that national remedy would violate anybody’s rights, or limit anyone’s liberty in ways a state government could not, or would be otherwise unfair, but for the sole reason that in the Court’s opinion the strict and arbitrary language of an antique Constitution denies our national legislature the power to enact the only politically possible national program.

It is only a specific provision of the Act that is now under serious constitutional challenge. The Act provides, among other benefits, health care insurance for the 16 percent of citizens who now lack it, and it forbids insurance companies to deny coverage or charge higher premiums for those who have a preexisting illness or incapability. These obviously just benefits cannot be provided, however, unless all citizens—the young and healthy as well as the elderly and already sick—join the insurance pool. If only those likely to need treatment seek to join, the insurance companies would need to charge astronomic premiums that most of them simply could not afford.

The premise of all social insurance plans, including the Social Security program, is that inescapable risks should be shared across a political community between those more and those less at risk. The Act follows this principle; it provides that with few exceptions Americans who are not insured by their employers or by other government programs must purchase insurance themselves or, if they do not, pay what the Act calls a “penalty” on their tax return.

It is this so-called “mandate” that the plaintiffs in this case—26 states with Republican governors, a group of businesses and some private citizens—challenge as unconstitutional. They say that although the Constitution gives Congress the power to limit or forbid commercial activity that has a significant impact on the national economy, it denies Congress power to require commercial activity, like buying health insurance, even when that activity is crucial to the national economy. That distinction between negative and positive regulation—between dictating the terms of insurance and requiring people to buy insurance—is the heart of the constitutional challenge. It was treated as potentially decisive by all the conservative justices who spoke: Justice Kennedy, for instance, asked whether the mandate doesn’t “create” commerce rather than regulate it. Why is the difference between restricting and requiring activity so important?

Not because the language or underlying principles of the Constitution demand that distinction. The Constitution’s architects were guided by a principle that makes the distinction irrelevant: that Congress should be assigned only those powers that could not effectively be reserved to the states. They believed that if the effects of a particular political decision would be felt only or mainly within a particular state, that decision should be made by that state because decisions by state officials would be more sensitive to local needs and local opinion. But if some matter could only sensibly be settled at the national level, like decisions about foreign trade or the terms of trade among citizens of different states, then the principle required that Congress have the power to decide it. That test can be applied without distinction to both negative and affirmative regulation.

Why do the conservative justices nevertheless think that distinction so crucial? They offer only one reason: they say that if Congress can make people buy insurance then it can make them buy anything it wishes. Why could Congress not make people buy electric cars to reduce pollution? Or join health clubs to improve the nation’s health? Or buy broccoli to keep broccoli prices high? All the conservative justices who participated in the oral argument pressed these questions. They said they could not uphold the insurance mandate unless they found what they called a “limiting” principle and, they suggested, none could be found.

The government’s lawyer, Solicitor General Donald Verrilli, offered several ways to distinguish health care from electric cars and broccoli. He said, first, that people do not have to buy cars or broccoli but almost everyone, eventually, has to receive health care. No one doubts that Congress could require patients to pay for any medical service they require through insurance, so that uninsured heart attack victims who wanted hospital treatment would have to buy insurance in the ambulance, presumably from paramedics trained also to sell it. Why can’t Congress avoid that ridiculous prospect by requiring people to have insurance in advance?

His second argument was even stronger. Every American already has health insurance; the mandate only requires that he pay for his insurance rather than free-loading on those who do pay. A federal statute and several state statutes require hospitals to provide emergency medical care to people who cannot pay for it, and America’s traditions of compassion mean that doctors will not let people die in pain when they can easily save or help them. In practice, this means that the uninsured will go to costly ER facilities when they need medical help. Congress found that health care for uninsured patients cost $43 billion in 2008; these costs were paid, through higher premiums, by those who do buy insurance.

Congress surely has the power to make people pay for what, out of human decency, the law and practice provide for them. Since it is impossible to predict who will suffer a grave accident or fall victim to a terrible disease, and since almost no one without insurance can pay for adequate care if he does, the only effective means of making people bear the actual costs of their own treatment is to require them to buy insurance in advance.

These are effective replies to the single conservative argument: they distinguish health care and insurance from broccoli and electric cars, and so offer a “limiting principle” of the kind the conservative justices say they want. There is, however, a deeper, more comprehensive objection to their argument: no limiting principle is either necessary or desirable. Their argument conflates two questions.

First, what power does any American legislature have to coerce people to buy what they do not want? Second, if any such coercive power exists, how is that power to be allocated between the state and national legislatures? Once we distinguish these questions we see that the conservatives’ distinction Congress regulating the price and terms of health insurance and making people buy that insurance is pointless.

The rhetorical force of their examples, about making people buy electric cars or broccoli, depends on a very popular but confused assumption: that it would be tyrannical for any government to force its citizens to buy what they do not want. In fact both national and state governments steadily coerce people to do just that through taxation: they make them buy police and fire protection and to pay for foreign wars whether they want these or not. There is no reason in political principle why government should not make people pay directly for these services through insurance rather than indirectly through the mechanics of taxation: direct payment would be no greater compromise of freedom. In fact Massachusetts does make people buy health insurance: that mandate is at the core of that state’s health care program, on which the national Act was partly based. Almost no one—apart from Michele Bachmann—has argued that the Massachusetts mandate is unconstitutional.

So we may ask: is there a constitutional limiting principle that would allow Massachusetts to impose that mandate but prevent it from requiring its residents to join health clubs or buy broccoli? There are of course constitutional limits to any power of government. Neither the indirect mandate of taxation nor any more direct mandate may be discriminatory or irrational, neither may deny due process, and each must serve some proper purpose of government. But are there any special limiting principles that would prohibit a state requiring broccoli purchase in a rational and fair way?

No. We are protected from silly state mandates not because the Constitution rules them out but because politics does. No state legislature would dare to make broccoli purchase compulsory unless, for some hard-to-imagine reason, this was plainly the only way to avert some economic catastrophe. The role of democratic politics in protecting citizens against legislative corruption or stupidity does not depend on whether the legislature wants to require or forbid economic activity, however. Voters would be no less outraged by a state legislature’s decision to ban automobiles altogether than by its decision to make them buy electric cars.

If we do not need a limiting constitutional principle to stop a state from outrageous economic legislation, we do not need any such principle to stop the national Congress, within its proper sphere, either. The Court can allow Congress, as it allows Massachusetts, to mandate health insurance without finding a constitutional barrier to a national compulsory broccoli purchase. Politics supplies the appropriate check in both cases. So we must turn to the genuinely important question, the second question I distinguished. What is Congress’s proper sphere of control in health care matters?

We answer by consulting the principle I described: the principle of state control over local matters. Neither the Constitution’s language nor that principle distinguishes between negative and positive regulation of commerce, between prohibition and mandate. The principle does require that Congress show that the commerce it seeks to regulate has a profound impact on the national economy. National regulation of health care plainly passes that test.

We cannot ignore the political dimension of this case. The Republican Party and the candidates for its presidential nomination relentlessly denounce the Act, perhaps largely because it was one of President Obama’s main domestic achievements during his first term. They hope that the conservative justices will declare the Act unconstitutional in June, just as the primary season ends and the national presidential campaigns get under way; they think that will help them defeat the President in November. But the Act is plainly constitutional and it will be shaming if, as so many commentators now expect, those justices do what Obama’s enemies hope they will.

Our recent history is marred by a number of very badly reasoned Supreme Court decisions that, deliberately or not, had a distinct partisan flavor: Citizens United, for example, which, most critics agree, has already had a profound and destructive impact on our democratic process. Those decisions soiled the Court’s reputation and harmed the nation. We must hope, though perhaps against the evidence, that the Court will not now add to that unfortunate list.

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