Will the Surpeme Court overturn the Health Care Act?

The Hastings Center Report today published a review,  “The National Individual Health Insurance Mandate,” (free registration required) by Lawrence O. Gostin on the constitutionality of the Patient Protection and Affordable Care Act of 2010. Gostin is certainly a formidable law professor, and it is hard to dismiss him outright. But it’s difficult to see who Professor Gostin was trying to convince with this report.

Attorneys general of 20 states have brought suit against the law and undoubtedly countless other persons, institutions and groups will have claims sooner or later. But Gostin’s report piece addresses only one question: whether, in the context of the law, the individual mandate can pass constitutional scrutiny. The individual mandate, as it is called, penalizes individuals who do not maintain qualified health insurance (beginning in 2014); the penalty is an amount equal to the greater of $695 per person (up to a maximum of $2,085 per family) or 2.5% of the household income. If the suits could be boiled down to this simple question, it would undoubtedly help. But I suspect that the opponents are going to try every conceivable legal argument against any part of the system they believe a claim can be made so that any decision ultimately by the Supreme Court will make Buckley vValeo, 424 U.S. 1 (1976), look like a model of jurisprudential statesmanship.

But even looking at this one issue, I am not encouraged by the depth of Professor Gostin’s analysis. He acknowledges that no regulatory system by the federal government requiring a private citizen to pay a private company has ever been examined for its constitutionality, but then he fails to address whether that affects the Act’s constitutionality. The fact is that this single feature of the Act, or rather the failure of the Act to provide a public health insurance option, is the feature that cost the Act its popular support and gave greatest comfort to opponents. I am persuaded that there would be no serious constitutional challenge if the Act had a public option. Liberal supporters trying to persuade liberal opponents of the watered down bill argued that the public option, even as originally design, was a small feature of the system and certainly not the Medicare buy-in that many wanted. While it is true that the public option was paltry, and even by its original terms didn’t cover as many people as its supporters believed, it had two beneficial effects: 1) It tended to show that the whole thing was not a scam to enrich the hated insurance carriers and might even have provided some competition for the oligopolies that made the market dysfunctional; and 2) It provided a real insurance product that people would have been more comfortable buying than the for-profit products that are sucking money out of the system.

Opponents of the public option understood the threat. Even a small public option would likely generate more enthusiasm than private health policies and the pressure to increase coverage would inevitably arise.

How does this affect the legal analysis? First, to the extent that the government requires a person to buy a government product or an equivalent private one, the “constitutionality” issue is not much different from Social Security. Not having a public option, however, makes the case different, perhaps not from anything contained in precedents, but sufficiently different in fact to allow a court to make up a rule that applies to this case and not to Social Security. Second, if there was a public option the whole scheme could have been characterized as a requirement that everyone participate unless they chose to opt into a private system equal to or better. What is now seen as a penalty would seem like nothing more than premiums for something like unemployment insurance or pension benefits. In additional to these two points, as a practical matter, it is likely that 20 state attorneys general would not be bringing the suit if the plan had the popular public option.

(The question of the standing of the states’ attorneys general is a curious one. Who are they representing? If it’s the State they must be complaining about something the Act requires the State to do. If it’s solely the individual citizens who don’t want to buy insurance, they are acting as gratuitous class attorneys. But I’ll leave that question alone.)

Even with the mandatory insurance provision the legislative scheme would ordinarily pass constitutional scrutiny, at least under the constitutional jurisdiction as it existed before the right-wing takeover of the court. The current court acts purely on the basis of political expediency, however. All trust in its faithfulness to precedent or the disinterested rule of law was permanently damaged by its decision in Bush vGore, 531 U.S. 98 (2000). That decision not only overturned settled law on preliminary equitable relief, it also invoked a sui generis application of the equal protection clause that it would never use for the benefit of anyone other than a reactionary like themselves. If you don’t believe me, read the decision; it expressly says: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In other words, this is done only in the present case. It has no value as a statement of the law, and we will never use it for the benefit of anyone other than George W. Bush. If another reactionary is in the same position, we may use the same ruling or make up a different one. If the words of the Court’s own decision does not persuade you (and frankly the decision could not be less persuasive other than this one statement), then just read Justice Stevens’s eloquent dissent.

So the Court was primed for political outcomes then. Since then two more right-wing judges, even less concerned with jurisprudence when political points are to be scored, were appointed by the beneficiary of the ruling in Bush v. Gore. And this new political Court has a precedent (from the prior right-wing court it continued) in United States v. Lopez, 514 U.S. 549 (1995). That Court held that Congress lacked the power under the Commerce Clause to prohibit someone from carrying a gun on school property. Before that decision the Court had not overturned a Congressional Act founded on Congress’s power under the Commerce Clause in about 60 years. It was a 5-4 decision authored by Chief Justice Rehnquist. You can read the decision yourself, but it is impossible to find an objective basis for the Court to ground its “necessary and proper” analysis as it did, as the dissenting opinions of Justices Stevens, Souter and Breyer pointed out. If there was any doubt about the political motivation of that decision, that doubt was erased by Gonzales v. Raich, 545 U.S. 1 (2005), which held that the Commerce Clause did empower Congress to criminalize the local growing and possession of marijuana for private use. That decision was also 5-4. Four in favor of Congressional power and four against were the same in both cases. The difference was Antonin Scalia, the most notoriously political of Supreme Court Justices since the staunchly right-wing “Four Horsemen” (James McReynolds, George Sutherland, Willis Van Devanter and Pierce Butler) retired from the Court in the late 1930s. Just to test whether Scalia’s political preferences decide the day, let’s look at United States v. Morrison, 529 U.S. 598 (2000). In that case the question was whether Congress had the power either under the Commerce Clause or §5 of the Fourteenth Amendment (which granted the power to Congress to make laws to enforce amendments promises of equal protection, due process, privileges and immunities of citizenship) to enact a law allowing a woman to sue for gender-motivated violence (in this case a rape). Let’s see. Do you think a right-winger would want women suing over rape? No, I don’t think so either. So where do you think Scalia came out as a “jurisprudential” matter? You’re right. He was in the majority overturning the law on the ground that Congress had no constitutional power.

So these cases show two things. The new breed of conservatives are as politically motivated as the right-wingers of the Four Horsemen era and before. That was a time when the Court found in the constitution reason to overturn things like state mandated maximum work hours and limits on child labor. This Court has a similar willingness to substitute its own policy views for constitutional doctrine. And given Lopez don’t they lack fig leaf, at least. Professor Gostin thinks otherwise, because Morrison said that the Raich Court said that Lopez should not be read “too broadly.” All I can do is agree with Michael Corleone, “Oh, who’s being naive, Kay?”

The report has some interesting facts. For instance, I did not know that 9 million people with incomes over $75,000 were without health insurance in 2007. I’m not sure which way this cuts, as the old legal cliché has it. Presumably wealthy people don’t clog up the emergency rooms because they can pay for individualized services. So doesn’t that cut against the belief that the uninsured cost the rest of the system more by requiring the system to over-allocate to triage services (at least to the extent the wealthy self-insure)? There still remains the argument that the premiums must be shared by all in order to drive down the overall cost and that allowing even the wealthy to opt out (and therefore to selectively pay for services) drives costs up overall. But once again it is hard to maintain that argument while the insurance is all being offered by for-profit providers, no rational system of cost allocation exists, and there is not even an option for public collection of money and provision of services.

But the legal argument is not what concerns me most. It is the willingness of the Court to throw caution to the wind, especially when there is a chance to score big on favorite right-wing causes (gun ownership, corporate participation in elections, the election of George W. Bush, as examples). And what could further a right-wing agenda better than crippling or destroying even this weakened health care reform? It would not only set back efforts of reform for decades, it would substantially aid and abet the argument of the tea baggers that this Administration is acting against the fundamental values of the constitution.

This is a high stakes game. It would have been less dangerous for the Administration (and well wishers to health reform in general) if the legislation were designed to deliver a real reform of the system. In that case, if the Court overturned it, there might have been righteous anger among the left, including unions, enough to take back the debate in this country. But, as it is, with an Administration that seeks little “bipartisan” victories in a climate where the other side is out for blood, the cards are stacked against us. There would hardly be the kind of outrage over killing this Act that killing a substantial and good piece of domestic legislation would create. So will the Court kill the bill? My head says, no; but my instincts say that the four right-wingers will sense that the country is at a dangerous tipping point and that they will seize the moment to inflict as much damage to any popular movement that they can. It will be an flat-out contest for the sole of Justice Anthony Kennedy. In those cases where it is make or break, Justice Kennedy always seems to side with his worse angels.

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  1. December 13th, 2010

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