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Eat your broccoli, Justice Scalia

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Eat your broccoli, Justice Scalia

Postby Kinsley » Sun Apr 01, 2012 9:55 am


In yesterday's Washington Post

Steven Pearlstein wrote:Like most Washington policy wonks, I spent too much of last week reading
transcripts of the Supreme Court arguments over the constitutionality of the
new health reform law. This was to be a “teaching moment” for the country,
an opportunity to see the best and the brightest engage in a reasoned
debate on the limits of federal power. Instead, what we got too often was
political posturing, Jesuitical hair-splitting and absurd hypotheticals.

My first thought on perusing the briefs filed in the combined cases was to
notice what wasn’t there: any involvement on the part of Corporate America.

For the past 20 years, big business has complained endlessly about
escalating health-care premiums, which they correctly blamed on “cost-
shifting,” including paying indirectly for the free care provided to the workers
at firms that did not provide health benefits. They wanted an end to fee-for-
service medicine that rewarded doctors for providing more care than
necessary. Some even talked of reforms that would begin to move the
country away from an employer-based insurance system.

Yet despite the fact that “Obamacare” did all of those things and more, there
was not a single brief in support of the law from an organization representing
big business.

Small businesses have spent the past two decades complaining that the
reason they don’t offer coverage is that it’s too expensive because they don’t
get the large-group and community rating advantage. So how did the
National Federation of Independent Businesses respond to a law that assured
small businesses the benefits of large-group purchasing and community
rating and threw in billions of dollars in subsidies to boot? It signed up as one
of the named plaintiffs challenging the constitutionality of the new law.

It’s hard to know what the business community will demand if the Supreme
Court overturns the health-care law. At that point, however, it will hardly
matter, since they will have lost all political credibility on the issue, particularly
with the Obama White House and anyone who happens to be a Democrat.

That said, I don’t agree with the conventional wisdom that, in light of last
week’s oral arguments, it’s a sure thing that the court will overturn the law
or its individual mandate.

Judging from their blatantly partisan bleating from the bench, it is certain
that Justices Antonin Scalia and Samuel Alito will join Clarence Thomas in
doing whatever it takes to impose their conservative, free-market, nothing’s-
changed-since-1788 agenda on the country.

An essential element of the Republican strategy these days is that, whenever
confronted with an obvious failure of the free market, the correct response is
always to try to turn the tables and blame it on misguided government
policy. So it was this week when the solicitor general and several justices
tried to make the obvious point that one reason so many Americans lack
health insurance is that the market is inherently unlike any other in that we
don’t deny medical care to sick people who can’t pay for it. It is from this
anomaly that springs the “individual mandate,” a requirement that all
citizens buy health insurance, to prevent them from becoming free-riders on
a system paid for by others.

Rather than wrestling with this obvious anomaly, however, Scalia and Alito
simply gave it the old Republican razzmatazz, blaming the government for
creating the problem in the first place by obligating hospitals to treat the sick
even if they are uninsured and cannot pay for the care. It was the kind of
sophomoric logic you’d expect from high school debaters — or a Republican
presidential candidate at a tea party rally — not from members of the
highest court in the richest country on Earth.

Michael Carvin, the lawyer representing the NFIB, was clever enough to see
that this was not going to be a winning constitutional argument. The proper
constitutional solution to that dilemma, he explained, was not to shut the
emergency room door on the uninsured, but simply require them to buy
insurance when they show up seeking emergency care.

Ah, I get it! An insurance market in which nobody has to sign up for
coverage until they’re ready to make a claim. Why didn’t Aetna and Kaiser
think of that? And if it works for health insurance, why not extend it to fire,
auto and flood insurance as well? Scalia and Alito, of course, wasted no time
in taking up this brilliant idea.

Another of Scalia and Alito’s cute debating tricks was to latch on to an
opposing argument and take it to its illogical extreme in order to show how
silly it is. By this technique, the individual mandate suddenly became the first
step on the proverbial slippery slope to government requiring that all
Americans buy broccoli or a gym membership because those, too, will make
us all healthier and thereby lower health-care costs.

It is axiomatic, of course, that the power to regulate, or to tax, or to
criminalize is the power to regulate, tax or criminalize stupidly. The power to
require you to buy airbags for your car is also the power to require you to
buy leather seats and a surround-sound stereo. The power to levy a fee for
buying a handgun is the power to levy a fee for not buying a handgun. The
power to criminalize abortions is the power to criminalize condoms and birth-
control pills.

But for some reason, when it comes to requiring Americans either to buy
health insurance or pay a fee, we are now supposed to believe that “all bets
are off,” according to Chief Justice John Roberts, or that “a fundamental
shift” has occurred in the relationship between the individual and
government, according to Justice Anthony Kennedy.

Really?

For starters, the Constitution already limits the “abuse” of such power by
subjecting those who wield it to regular elections in which citizens are free to
decide what is going too far and what is not.

And as justices know all too well, there are already in the case law scores of
judicial tests that have been successfully applied to a wide range of
congressional actions and powers to assure that they are reasonable and
rational, that they are not arbitrary, that they are necessary to achieve a
legitimate or compelling state interest. Surely Justices Roberts and Kennedy
and their legion of summa cum laude law clerks can conjure up a workable
criteria to distinguish a law requiring the purchase of health insurance from a
law requiring the purchase of pomegranate juice.

If there is a legitimate challenge to the law, my hunch is that it is likely to
come over the question of whether the individual mandate is as narrowly
drawn as possible to achieve its objective. If regulating the interstate market
for health care requires regulating health insurance, and if assuring a healthy
insurance market requires solving the problem of free-riders who drive up
premiums and taxes for everyone else, then isn’t the solution to require
everyone to buy “catastrophic” insurance?

Roberts asked that question twice, but got no satisfactory answer, either
from the solicitor general or any of the other justices. The reason is that
there is no good answer. The safer ground for health reform was always to
base it, at least initially, on policies that cover major medical events such as
a heart attack, a premature birth, or treatment of cancer or a serious chronic
condition. Yet such an approach has always been rejected out of hand by
liberal Democrats and powerful “disease lobbies” who were intent on finally
achieving health-care coverage that was both universal and comprehensive.
Now their over-reaching has not only driven up the cost of health reform and
made it difficult to win broad political support, but has also put the entire law
in constitutional jeopardy.

In the end, Roberts will see the institutional peril in overturning the most
significant piece of domestic legislation in a generation, particularly in the
wake of the overtly partisan decisions of Bush v. Gore and the Citizens
United. With Kennedy in tow, the chief is likely to articulate a modest new
limit on Congress’s power to regulate interstate commerce that would allow
health reform to proceed in some fashion. Or, as he hinted in oral
arguments, he may duck the commerce clause altogether and simply uphold
the individual mandate as a legitimate exercise of Congress’s taxing power.
The cacophony of accompanying dissents and concurring opinions will make
it difficult to figure out who won, who lost and exactly what precedent was set.

The Artist formerly known as BigCrab


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"They were so preoccupied with what they could do, that they didn't
think about whether they should.''
- Ian Malcolm in Jurassic Park .

"You can't always get what you want; but if you try sometimes,
you just might find, you get what you need."
- Mick
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Kinsley
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