The main curiosity is, of course, Chief Justice Roberts’ unusual position siding with the Court’s ‘liberal’ wing to uphold the law although he found his own, quite distinct, reasons for doing so—that the individual requirement to buy insurance (the ‘mandate’) was a (permissible) tax rather than an (impermissible) exercise of the Federal Government’s right to regulate commerce. Having read Roberts’ arguments line by line, I have to say that he has a point.
One of the original characteristics of our oddball system is federalism, the ways in which Washington is empowered to do many things but is also limited by the states’ claim to a balancing jurisdiction in many areas—specifically, those not laid out in the Constitution’s enumeration of federal powers. We can set aside the many misuses of the ‘states’ rights’ meme (secession and segregation being only the most egregious) and accept that anything the holds back the massive power of a modern centralized state should be given at least a hearing if not the benefit of the doubt.
Both sides’ discussions of the mandate concede a central point: that piecemeal reforms of the health insurance system have been tried and don’t work, such as the ban on refusing insurance to people with prior conditions. The mandate is required to solve the problem of people remaining outside the insurance pool while healthy and then trying to access medical care when sick—often without the means to pay for it.
The conservatives were all set to kabosh the whole law by finding that this compulsion to engage in commerce was unconstitutional because it did not regulate a behavior but rather compelled it. The law, said Roberts, attempts to regulate inaction, which he found troublesome because ‘every day individuals do not do an infinite number of things’.
In one of his catchiest phrasings, Roberts declares: ‘Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do’.
The famous ‘broccoli horror’ (Ginsberg’s term) stemmed from Justice Scalia’s query to the government lawyer about whether Washington could force a citizen under the Commerce Clause to buy this vegetable because his failure to do so would lead to illness and eventual consumption of medical care. But this impassioned defense of individual prerogatives comes from a suspect source, to say the least. This is the same Court that consistently upholds the Federal Government’s right to imprison people without habeas corpus recourse and overwhelmingly sides with the police power against persons caught up in the web of criminal accusations. Ginsberg saucily notes the same contradiction in a footnote.
Nonetheless, Roberts stuck with the conservative minority up to here, and if Scalia & Co. had stopped there, they apparently would have carried the day; if so, the mandate would have been history, and the law severely crippled.
Even Roberts, who has not distinguished himself for his exercise of judicial restraint, apparently feared taking this radical step. Indeed, there is ample evidence that the original minority decision was written as the ruling itself until Roberts bailed on it and wrote his own, to be joined by the erstwhile minority-cum-majority.
The more polemical arguments by Ginsberg (for the law) and Scalia (against it) both openly display their political biases. Ginsberg pokes a stick at Roberts, saying ‘THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.’ That is, Roberts is a throwback to the ‘nine old men’ who ruled against Social Security and unemployment insurance in the 1930s.
Nor could Scalia and friends resist potshots, referring to the ‘wide and wonderful results’ of the Federal Government’s exercise of the commerce clause in the past. The sneering contempt for the basic structure of the New Deal is tossed off in the opening paragraphs. Later, the dissenters complain that the act would ‘impose significant risks and real uncertainties on insurance companies, their customers, all other major actors’ and that such ‘avoidable uncertainties are hostile to economic progress and fiscal stability’. I wonder if they paid a commission to the AEI or the Heritage Foundation for those chapters from the anti-regulatory bible.
But Ginsberg at least tries to come to grips with the actual circumstances that Congress was trying to address in re-imagining health care and its payment system: the vast expenditures involved and the impossibility of individual state action. She finds the new tools to be a ‘practical, altogether reasonable solution’, which I do not. But the question is rightly posed.
She scoffs at the phony parallel between buying health insurance and being forced to consume greens (a ‘crown’ of broccoli, as she charmingly calls it) by noting that virtually everyone gets sick or injured. She argues that to say that people refusing to join the insurance pool are ‘outside’ the system of healthcare commerce is meaningless, especially when providers are required to attend to the penniless and impose the costs of their care on the rest.
I don’t know who’s right in this legal debate, but I think it misses the underlying issue for our polity: why is providing for people’s health defined as an essentially commercial enterprise in the first place? It is true that money and products and payments are involved, but access to medical care in modern societies is much more, or more correctly, much less than that—it is a basic, universal need, not just a marketplace commodity. Not incidentally, it is enshrined as a fundamental human right in many places, but in any case should certainly be examined from the perspective of its central role in human existence, not reduced to its economics.
From this prism, Roberts insisting that people are not ‘engaged in commerce’ when they remain uninsured and Ginsberg insisting that they are both sound slightly wacky. Even Justice Scalia basking in his god-given right not to buy broccoli is quite clearly buying food of some sort and a good deal of it, too. Then again, the Court’s job is to interpret the law within the parameters given; ours is to change those parameters. If the Court, the government and lawyers far and wide can only see health as a commodity, a social movement must insist that their vision is impoverished and offer them some political optometry--perhaps at an attractive, out-of-network discount.
So the AHA is preserved and now can stumble forward toward implementation, which will be fraught with difficulties, obstructionism, unanticipated outcomes, and further debates. It does nothing to rein in runaway health spending, which is probably what will constitute its first test. The Republicans will use accelerating costs to sabotage everything if they remain out of power and will have to come up with credible amendments if they are in. In any case, the decision’s impact on one or another president smiling at us from the Rose Garden next January is the least of it, and the notion that the momentum has shifted away from the reactionary tendencies of past decades is premature.