The recent oral arguments in front of the Supreme Court on the constitutionality of the individual mandate portion of the Affordable Care Act should never have happened.
Had the Democrats done what the GOP accused them of doing, namely ramming through a health care reform bill, we’d have something closer to a single payer system and this circus would be unnecessary. Unfortunately, the Democrats did not ‘ram’ a health care reform bill through Congress. It was debated and massaged for almost a year before final signature. The Democrats negotiated away the public option. Obama outsourced the fight to Congress for months before getting involved. Democrats put in the individual mandate to appease Republican concerns and include an idea of Republican design. And now they are paying for that decision by suffering through a relitigation of the law.
Here’s one of the exchanges that we could have been spared:
Justice Antonin Scalia: Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Solicitor General Verrilli: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and -- and seek to obtain a product or service, you will get it even if you can't pay for it.
We’re discussed whether or not requiring people to be included in the health insurance pool is the same or different than requiring them to eat broccoli. I weep for America. Using the Justice’s analogy, health care is to food as a knee replacement is to broccoli. We will all consume health care and food in our lifetimes. We will not all opt for knee replacements or all eat broccoli. His analogy is talk radio caliber nonsense.
Regardless of the outcome of the Court’s deliberations, what we need to remember is that the verdict has absolutely nothing to do with the economic effectiveness of the Affordable Care Act. The only question that will get an answer is whether or not the federal government can tell us to buy insurance under the commerce clause of the Constitution.
This decision will not solve the problem of the uninsured going to the emergency room when they have the flu on someone’s else dime. This decision will not solve the problem of the uninsured accident victim needing care that costs premium payers hundreds of thousands of dollars before they regain consciousness. This decision will not address that the individual mandate was a compromise solution that kept the private insurance industry involved and profitable while forgoing the need for a single-payer system.
This debate about health care should be about demanding personal responsibility, something the Right used to encourage. Demanding people contribute to something to their care that will save everyone money makes sense. In fact, isn’t this the exact argument made by conservatives about the federal tax code? If everyone had skin in the game, they would be more engaged in the tax process. Why isn’t that true of health care?
We are already under an individual mandate. Part of my premium is paying for the uninsured. If I can opt out of paying the portion of the premium every month that covers the uninsured, we’ll talk. Until then, I am mandated to pay money each month that supports those without insurance.
But perhaps we are all debating about a small issue. Only a small percentage of the public would even be subject to the individual mandate, if it’s found to be constitutional. A new Urban Institute study finds that 98% of Americans “would either be exempt from the mandate -- because of employer coverage, public health insurance or low income -- or given subsidies to comply.”
So we get to stew over the issue until June when the Court makes its decision. That is when the real fun will begin, however. Regardless of the ruling, the ripple effects will be massive and long-lasting. The ironic things is that the central issue before the Supreme Court was once opposed by Obama, supported by conservatives and Republicans, and won’t even affect most Americans.
And GOP voters, don’t get too excited about your nominee on this issue. Here is what he said this month on Jay Leno:
“As long as you have been continuously insured, you ought to be able to get insurance going forward, but only if you have been continuously insured. If they are 45 years old and they show up and say, ‘I want insurance because I have heart disease,’ it’s like, hey guys — we can’t play the game like that!”
If we must provide emergency care services regardless of ability to pay, then what’s the answer, Governor? Are you saying that this person should be obligated to participate in health insurance prior to this event (an individual mandate), or are you saying that we should deny him life-saving care at the hospital? If your position is “let him die”, we need to know that before election day.
In the meantime, we wait.