On the Supreme Court’s mauling of Obamacare

It’s been 12 years since the last shamelessly partisan verdict by the conservative- dominated US Supreme Court when – after the 2000 election – they gift-wrapped the Presidency and handed it to George W. Bush. Yet this week’s oral hearings by the Court on the Obama healthcare legislation (so far, the main achievement of his administration) suggest that a horror show of similar dimensions will be on the cards when the Court’s verdict is finally delivered in June. Oh, true… that Citizens United case where they declared that corporations have the same free expression rights as individuals – and thus enabled US elections to be openly bought and sold – wasn’t so hot either.

The core of the legal case against Obamacare comes down to the constitutionality – or not – of that element of the health care plan knows as the individual payer mandate. (The “individual payer” concept resembles Kiwisaver, which also involves a selection between government-authorized companies.)

Ironically, this idea had been a compromise by Obama, meant to defuse opposition to the other simpler (and saner) option, which was an entirely federally funded health insurance scheme available to all Americans. But that would be you know… Socialism. And so, in classic Third Way style, Obama went for the individual payer option, which has been labeled as Socialism anyway, and Justices Antonin Scalia and Samuel Alito are now beating him with it like a club. The likely result in June seems a 5-4 verdict to strike down the law. Washington Post columnist E.J. Dionne sees it this way:

Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal. [It is also virtually the same system that Republican frontrunner Mitt Romney passed while governor of Massachusetts…!!]

The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.

So far the only good thing to emerge from the oral hearings on Obamacare has been the quality of the writing about it. To my mind the two standouts have been this piece by Dahlia Lithwick in Slate and this dogged but extremely useful analysis by Robert Creamer, originally printed in the Huffington Post.

I urge you to read both of them. In the Washington Post, Dionne set the stage for Lithwick’s subsequent reportage on Scalia:

The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation’s Stuart Butler.

“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”

Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “We’ve obligated ourselves so that people get health care,” Scalia replied coolly: “Well, don’t obligate yourself to that.” Does this mean letting Butler’s uninsured guy die?

On Slate, Dahlia Lithwick called attention to this exchange, and its implications:

Jutice Sotomayor, again pondering whether hospitals could simply turn away the uninsured, finally asks: “What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance—do you think there’s a large percentage of the American population who would stand for the death of that child if they had an allergic reaction and a simple shot would have saved the child?”

But we seem to want to be free from that obligation as well. This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, [and] walk away from those in peril… It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

To some libertarian ideologues, this will be all well and good. That’s why Creamer’s contribution is useful, because he patiently picks his way through those instances where federal compulsion is an established and accepted-as-valid expression of state power, and why healthcare belongs in that camp – and not in the category of discretionary decisions like eating broccoli or taking out gym subscriptions which some on the Supreme Court worried could, in principle, become mandatory if compulsion in health care coverage was condoned.

Forgive me for the length of this extract from Creamer’s article but the logic is interwoven:

There is no question whatsoever, that government in America has the right to require our citizens to pay for public goods or for services that we decide can best be provided through government. Clearly, government can tax homeowners to provide the community with fire protection, for example. You might not need fire protection for years — or decades — or ever — but government can decide that you have to pay into the fire protection district because if your house catches fire, it could affect the entire community.

But, says the right wing, government can’t require an individual to purchase a product from a private company they may not want or “need…” But some years ago, conservative Republicans like Mitt Romney proposed providing universal health care coverage by requiring everyone to buy insurance from private insurance companies that are regulated through state-based exchanges. When Romney was Governor of Massachusetts he got the state legislature to pass this kind of system — Romneycare — which has been functioning in the state for many years and whose constitutionality has never been questioned by the Supreme Court.

There is no question that the government can require parents to pay private pharmaceutical companies for their kids’ vaccinations before they enter school — and it can also require them to attend school — because both issues affect the welfare of the entire community. And there is no question as to the constitutionality of the many state laws that require anyone who drives a car to purchase private car insurance. But, you say, the difference is that you don’t have to drive a car — you can simply decide not to get a drivers license if you want to avoid buying private car insurance.

True. But the need for health care is not elective. Last time I looked, everyone ultimately dies. I don’t care how healthy you are, everyone inevitably has some health problem in their lives. The question is not whether you will need health care, the question is how you will pay for it when you do. And in this respect, health care is entirely different than virtually any other commodity.

First, it is not entirely subject to the normal laws of economic activity. People can’t determine how sick they can afford to be, or which diseases fit into the family budget. You don’t come home one day and say: “Gee honey I just got a raise, now I can have cancer!” Health care needs are not elective purchases like cars or TV’s. And when it comes to health care, there is often little relationship between cost and value. A ten-dollar vaccine can add decades to your life, and hundreds of thousands of dollars of intensive care can add weeks or days.

But most important….we do agree — as a society — that everyone is entitled to the best health care that is available no matter their wealth or station in life. We don’t believe that anyone should be left as roadkill after a traffic accident because he or she can’t pay for health care. That being the case, someone can be young and healthy and vibrant one minute, and in need of massive, costly health care services the next.

The individual responsibility provisions of the Affordable Care Act simply says that everyone be required to pay — at a level they can afford — for the fact that society won’t leave them by the side of the road to die after an accident — or when they are struck by cancer or a heart attack. It recognizes that in America everyone actually does participate in a form of health insurance system, whether they pay for it or not. It says that young, healthy people should not be allowed to be “free riders” in the system, until the moment they become sick or injured. The fact is that in the current system, 40 million Americans are not formally part of health insurance plan — most because they can’t afford it, without the kind of subsidies provided in the Affordable Care Act.

In the America of the Tea Party and in the world that Antonin Scalia appears to inhabit, it would be rampantly unjust for Congress to respond to that reality with any form of compulsory safety net. Ultimately, the real irony will be that if Obama’s healthcare legislation does get struck down in June, he could go full steam ahead with a single payer, federally funded system. Or he may just fold his cards and decide…no, we can’t.


Marco Rubio for vice-President.

A few months ago when Rick Santorum was causing all kinds of grief for Mitt Romney I thought the only way Romney could eventually unite the party would be by offering Santorum the job of deputy on the Republican ticket.

Now there’s a clear alternative option – a dyed in the wool conservative who is young and telegenic and who doesn’t carry the same historical baggage that Santorum has with female voters. Folks, meet Marco Rubio, the Republican Party favourite and junior senator from Florida! Obviously, Rubio could also deliver Florida, that perennial swing state, to the Republican side of the ledger in November.

At this stage, Rubio seems a pure asset, an anti-Palin candidate. (That can change.) Still, even with Rubio on the ticket, Romney probably can’t win in November unless the economy suddenly tanks again. However, with the benefit of this year’s national exposure – and he can always blame Romney for the loss this year – it does make Rubio look like a good bet as the next Republican President, in 2016. Oh, and in yesterday’s Washington Post, guess who has just endorsed Mitt Romney? Marco Rubio. And three days ago, who endorsed Rubio for vice-President? Jeb Bush. Its starting to look like a landslide.

Meanwhile, the voter rolls remain in bad shape in Florida, to an extent that will conceivably skew the result in November.


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