With the Supreme Court hearing arguments for the next three days on the Affordable Care Act, many commentators, including Dahlia Lithwick appear to have so much contempt for the Roberts court that they believe the issue will likely be settled on politics rather than law.
The first proposition is that the health care law is constitutional. The second is that the court could strike it down anyway.
The law is a completely valid exercise of Congress' Commerce Clause power, and all the conservative longing for the good old days of the pre-New Deal courts won't put us back in those days as if by magic. Nor does it amount to much of an argument.
Despite the fact that reading the entrails of those opinions suggest that they'd contribute to an easy fifth, sixth, and seventh vote to uphold the individual mandate as a legitimate exercise of Congressional power, the real question isn't whether those Justices will be bound by 70 years of precedent or their own prior writings on federal power. The only question is whether they will ignore it all to deprive the Obama of one of his signature accomplishments.
Professor Randy Barnett, the intellectual power behind the entire health care challenge, wrote recently that Justice Scalia could break from his previous opinions--freeing him to strike down the Affordable Care Act--"without breaking a sweat." I suspect that's right.
If that's true, we should stop fussing about old precedents. These old milestones of jurisprudence aren't what will give Scalia pause. What matters is whether the five conservative justices are so intent in striking down Obama'shealthcare law that they would risk a chilly and divisive 5-4 dip back into the waters of Bush v. Gore and Citizens United.
It disturbs me when legal commentators as experienced and knowledgeable as Lithwick have essentially given up on the notion that the court is non-partisan or above the political fray. Instead, they seem to think it's just another political body, making decisions based on partisan point-scoring over legitimate constitutional analysis. With the tea party rallying to keep us uninsured under the false notion that the bill will increase costs (it will actually reduce the deficit according to the CBO) and impinge their freedoms. These are the false arguments that people like Nick Gillespie (or libertarian Fonzie) are using, quite successfully, to convince the American people to oppose their own interest. Gillespie argues in his three point essay that (1) it's unconstitutionally intrusive legislation (2) it's price tag is ballooning, and (3) it won't make us healthier. The first claim is debatable since it's ultimately up to the courts. However good arguments suggest congress does have the power to pass such regulation.
For one previous case like Wickard and Raich suggest extensive powers for congress to regulate commerce. Second, if one of every seven dollars is spent on healthcare, it represents a significant portion of the economy. Third, and most importantly, the uninsured inflict an economic penalty on taxpayers and the insured, so rather than claiming they have a right not to buy, I would argue we have a right to address the cost the uninsured inflict on society. The penalty for not carrying insurance I believe makes complete sense in this regard.
The second claim is blatantly false and his description of the costs as "ballooning" is unsupportable based on the CBO reports. This talking point is an outright lie being spread far and wide by right wingers. The CBO director had to issue a comment to correct this widespread deception.
The third claim is a bit of a red herring. The health benefits of people being insured may eventually result in a healthier population but probably not by much and it's besides the point. We're not arguing the law will make us healthier. We're arguing that the reform law will reduce healthcare expenditures, and protect people economically from the often devastating costs of illness.
But rather than just knocking down their arguments I think it's important to remind people of the positive reasons we should support this bill. So I have my own list of 3 reasons this bill should be upheld and we should all support it.
First, the bill is encouraging personal responsibility for the uninsured that can afford insurance. Right now, taxpayers and the insured pay more because of the costs of the uninsured are distributed on those who do pay for insurance and pay their taxes. Everyone will eventually need healthcare. It's extraordinarily unusual for people to go their entire lives (unless they're short lives) without some medical intervention. And it's not like you can be a perfect exercising, skinny, non-smoking, non-drinking vegetarian and still expect to avoid us. You might get appendicitis, you might be one of those unfortunates sabotaged by genetics to have early hypertension or cardiac disease, or you might crash your car while swerving to avoid some old lady walking her cat and fracture your skull. You never know, and the overwhelming probability is that yes, you will need us at some point. And we're already paying for the uninsured, just in the stupidest way possible. We pay for problems when they're critical, in the ER, when they're the most expensive and most difficult to intervene on. This is stupid. As we have discussed extensively the price of this stupidity is a hidden tax on the insured and taxpayers. For those who do not have the income to afford insurance, their insurance will be subsidized, and we have good evidence that covering the uninsured actually costs less than leaving them uncovered.
Second, the bill contains reforms that will save us money and reduce the deficit. Yes, it will save us money, claims that the CBO has shown "ballooning" increases in costs are explicity denied by the director of the CBO. It seems like I might have mentioned this once or twice before, but we are already paying for the uninsured. This law will make it so that rather than paying for them to receive the most expensive type of care when preventable problems have become critical, they will have access to physicians outside the ER. Further, we spoke recently about the perverse incentives of our current payment structures that encourages excessive utilization, expensive tests, and expensive procedures. This law includes reforms to change the incentive structure of the Medicare fee system, and likely will be ported into individual private insurance as well. I will also show this graph for the millionth time:
Every other country spends half of what we do per capita on healthcare, all while covering all their citizens. They deliver care in a variety of ways, and single payer systems touted by liberals are the minority and tend to have access problems. To me, the system the ACA resembles most appears to be the Netherlands which happens to have excellent access, and the highest satisfaction rate of the surveyed countries through a system of private insurance, subsidization for the poor, and risk-sharing so insurance companies are willing to cover chronic illness and preexisting conditions.
Third, this law will protect you economically and decrease a major source of stress for many people. Even those who are wealthy and can afford good insurance will benefit because this law will stop insurance companies from discriminating against chronic illness, from discriminating against pre-existing condidtions, and will help prevent unpredictable illness from causing financial devastation. The test case for the challenge to the law is telling, the plaintiff has apparently gone bankrupt in part due to medical bills. If this couple, that was on the brink of bankruptcy, had some government-subsidized health insurance, maybe we wouldn't be picking up the tab yet again, and they would be more financially-secure. This bill is in all of our financial interest, not only to provide us with coverage, but to insure that coverage won't disappear once we really need it.
Sadly, its likely that Dahlia Lithwick is right. The people on the court are there under the false premise, that has been presented for decades, that we are overrun by "activists judges", who are acting against America and the constitution. While the Supreme Court has skirted the edges of constitutionality, they have gotten by with doing so by the simple fact that the constitution itself is insufficiently explicit in some matters to deny what they have done. However, any number of things they have decided recently go against prior law. One example is the idea that someone can "recopyright" a public work, in effect removing it from the public. How does that not undermine the law, with respect to the very idea of such publicly owned works? The whole Citizens United is similar. When, in the whole history of the US, has businesses been deemed to be equal to citizens? Sure, they have been given rights, but those rights have been contingent on certain understandings that real people matter more. None of it exactly goes against the constitution, more or less, but it does go against common sense, and often ignores existing law on the subject, and its all driven by the insane idea that only one political sides views of what the constitution means **is right**, even to the extent that they would, in all probability, have no problem supporting amendments to the same, which undermined protections of people the right doesn't like. I don't trust the people in there right now, and its not just because (though a great deal of it is due to these things) a) there is no clear means to remove them if the overall public doesn't like what they are doing, b) they are appointed by what ever political wing is in charge at the time, not elected, so the chances that they are picked by such politicians for non-political reasons.... and c) at least one of them won't recuse himself from cases involving things his own wife apposes, not on legal grounds, but based *precisely* on politics, because, unlike any other judge in the country, they don't legally have to do so, for some reason, when a conflict of interest exists.
Well, misread that some, its not "at" the SC yet, but that means the deck is stacked even more against it imho.
MarkH: The reasons you give for upholding the ACA are, indeed, good *policy* reasons for having some form of universal health care in this country. Unfortunately, now that the case is being heard before the Supreme Court, they are irrelevant to the question of whether ACA should be upheld. At this level, it comes down to arguments about the Constitution and court precedents.
Everything I have seen to date indicates that, if the justices go by precedent, ACA will be upheld. (IANAL, so I defer to the judgment of others here.) However, Lithwick's fear that the justices will rule on ideology or politics is entirely rational. Bush v. Gore is evidence that the court can be political. The question is whether five justices on the court are willing to open the large can of worms that overturning New Deal precedent represents. I have seen the anti-ACA case sketched out, and there is enough of a semi-plausible argument to throw out some of the law, as long as you are willing to overturn a precedent or two. I think that at least one of the five potential votes against ACA won't go down that road (i.e., ACA will be upheld), but I don't have high enough confidence to put money on that assessment.
There is only one vote on the Supreme Court that counts, namely that of Justice Anthony Kennedy. The 4 fascist judges, Alito, Roberts, Scalia, and Thomas will vote nay, the 4 moderate justices will vote aye. Thus, the decision will be 5 to 4 either way.
There is a possibility of a 6-3 or even 7-2 vote if Roberts or Scalia decide to join a liberal/Kennedy majority so that he can write the opinion and make it toothless or ineffectual. Even a little line like "all deliberate speed" can have big effects.
Re MarkH @ #5
Not going to happen. The decision will be 5 to 4 with Kennedy deciding.