Health insurance isn’t broccoli…

The Supreme Court held oral arguments on the Affordable Care Act, particularly the individual mandate requirement.

It is worth noting that most Supreme Court watchers–from a survey of the insiders (like current and recent clerks) to a survey of the American Bar Association to the betting on Intrade–all predicted the court would uphold the law, including the mandate. And after all, most (but not all) of the lower courts did uphold the entirety of the law. Predictions mostly centered on the vote count–will it be close, or will it be a 7-2 decision? Two years ago, many would have thought this would have been unanimous decisions–not even a question.

It’s a mark of the radically conservative, judicial activist bent of the current Supreme Court that they may either narrowly approve or reject the individual mandate in the Affordable Care Act. When so many expect the law to be upheld, its a strong signal of unprecedented activism if they overturn a law that Congress writes–and in doing so, surprise folks in the process. If folks who follow the Court can’t predict its decision, then who’s the judicial activist?

The questions of the justices seemed to indicate that four Supreme Court justices would uphold the law, and five lean to strike down the mandate–but with two of those as possibilities for a swing vote: Sacramento-bred Justice Kennedy, and pehaps Chief Justice Roberts. But let’s remember this is a similar court to Citizens United, or even Bush v. Gore.

Here are some analyses that helped me sort through the hearings, from SCOTUSBlog, Slate, and The New Republic–which raise both the issues of concern, and the context that says that for all the tea-leaf-reading, we really don’t know the final result.

It’s sad that the Supreme Court isn’t taking the presumption that the Congress, as the elected branch of government, should not be given some deference here. Instead, most of the debate was whether, in allowing the goverment the ability to mandate the purchase of health coverage, there is a “limiting principle” to prevent the purchase of other products. As was brought up in the arguments and in the briefs–could the government require the purchase of broccoli?

The government’s lawyer said no–one of his arguments was that health insurance is unique–and that Congress is not seeking to stimulate economic demand. But the case could even be stronger–health insurance is unique given the size of the bills that we need to protect ourselves from: it literally can be the biggest bill anybody will get in their life, perhaps bigger than a mortgage or a college education. It also is unexpected–it is not something that can be planned for, not something that you know if you need for one week or three months, if you need a one-time operation or get a chronic condition requiring ongoing and expensive treatment. This isn’t broccoli– this is a unique purchase, with a unique market problem.

In such a situation, the only way insurance works is if everybody participates. Yes, as the challengers point out, that involved an implicit subsidy from the healthy to the sick, by definition. But there’s an expectation that one of these years, by age or accident, we’ll be in the 10% that need major medical care, rather than the 90% that don’t.

I do disagree with reporters who say the individual mandate is the heart of the reform. Many other provisions, from the Exchanges to the Medicaid expansions to others, are more central. I think there are other alternatives to the problem of trying to get everyone, including the healthy, into the health system. There’s automatic enrollment, for example.

Of you could raise taxes for everybody, but then give tax credits to everyone who has proof of insurance. But in fact, that’s exactly how the Affordable Care Act would work as written. So change a few words around using the word “tax” rather than “mandate,” and suddenly this case is not in the legal system, unless someone wants to challenge the government’s right to tax.

This also goes to my final point: the problem with the law is not legal, or constitutional, but political. Even if the Supreme Cout invalidates in the individual mandate, Congress could easily replace it with another mechanism–like the “pay-or-play” mechanism describes above. But the question is whehter there is political will to make even a slight adjustment to the law.

The legal challenge is surmountable, whatever the Supreme Court does. It’s the politics. And that’s the real challenge.

Health Access California promotes quality, affordable health care for all Californians.
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