My respect for the four most conservative Supreme Court justices has gone down a lot this past week, now that I've been able to learn how their supposedly top-notch legal minds view the Affordable Care Act's mandate that every American have health insurance.
A cartoon by Politico's Matt Wuerker sums up the absurdity of how Scalia, Roberts, Thomas, and Alito seem to be viewing the mandate issue.
Columnist (and economist) Paul Krugman made pretty much the same point as cartoonist Wuerker in his column, "Broccoli and Bad Faith."
Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.
Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.
There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.
Are these fundamentally different approaches? Is requiring that people pay a tax that finances health coverage O.K., while requiring that they purchase insurance is unconstitutional? It’s hard to see why — and it’s not just those of us without legal training who find the distinction strange. Here’s what Charles Fried — who was Ronald Reagan’s solicitor general — said in a recent interview with The Washington Post: “I’ve never understood why regulating by making people go buy something is somehow more intrusive than regulating by making them pay taxes and then giving it to them.”
Slate's Dahlia Lithwick looks at the bizarre anti-morality of Scalia, and, likely, other conservative justices who agree with him, in her thoughtful piece, "The Supreme Court's Dark Vision of Freedom."
When Solicitor General Donald Verrilli tries to explain to Justice Scalia that the health care market is unique because “getting health care service … [is] a result of the social norms to which we've obligated ourselves so that people get health care.” Scalia’s response is a curt: “Well, don't obligate yourself to that.”
...Freedom is the freedom not to join a gym, not to be forced to eat broccoli. It’s the freedom not to be compelled to buy wheat or milk. And it’s the freedom to purchase your health insurance only at the “point of consumption”—i.e., when you’re being medivaced to the ICU (assuming you have the cash).
...Sotomayor, again pondering whether hospitals could simply turn away the uninsured, finally asks: “What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance—do you think there's a large percentage of the American population who would stand for the death of that child if they had an allergic reaction and a simple shot would have saved the child?”
But we seem to want to be free from that obligation as well. This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old.
Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone.
And now we know the court is worried about freedom: the freedom to live like it’s 1804.
E.J. Dionne expressed exactly how I felt about the tone of debate among the conservative Supreme Court justices. What the hell were the justices doing, with all their talk about whether Congress could, or should, deal with the consequences of a court decision that the individual mandate to buy health insurance is unconstitutional?
Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.
Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.
The current membership of the Supreme Court arguably is the most conservative in modern history. OK. It is what it is. But we can still expect that the conservative judges will act like judges, not legislators, politicians, or lobbyists.
Greg Sargent asks, "How did legal observers and Obamacare backers get it so wrong?" His answer: because they over-optimistically believed that conservative Supreme Court judges like Scalia wouldn't allow their personal political beliefs to overwhelm their legal analysis.
I didn’t mention this yesterday, but in his interview with me about the limiting principle, former Reagan Solicitor General Charles Fried was scaldingly critical of the willingness of the conservative bloc of Supreme Court justices to traffic in some of the most well-worn Tea Party tropes about Obamacare.
“I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”
Which raises a question: How did so many commentators predicting this would be a slam dunk for the Obama administration get it so wrong?
...During oral arguments this week, Scalia invoked the broccoli argument to question the goverment’s case. He mocked the government’s position with a reference to the “cornhusker kickback,” even though that’s not in the law. As Fried notes, this language is straight out of the Tea Party guerrilla manual that was written during the battle to prevent Obamacare from becoming law in the first place.
All of which is to say that the law's proponents were badly caught off guard by the depth of the conservative bloc’s apparent hostility towards the law and its willingness to embrace the hard right’s arguments against its constitutionality. They didn’t anticipate that this could shape up as an ideological death struggle over the heart and soul of the Obama presidency, which, as E.J. Dionne notes today, is exactly what it has become.
Cockroaches and rats of the future, in studying the history that led to their dominating the world, will ponder the role broccoli had in how the Supreme Court changed US history with their interpretation of the commerce clause.
It is all about liberty. If we can be compelled to buy health insurance then, by reductio ad absurdum, we could be compelled to buy broccoli. My answer is, yes, Congress could so enact such legislation (were it stupid enough to do so). That is not my point, though. It seems to me that the issue is double edged. Neither Verrilli nor the minority four seems to have addressed what I see as the flip side.
No one questions that it is ok for Congress to prohibit me from buying green things (cannabis sativa?). My liberty is just as much constrained by prohibition as it is compulsion.
The way the questioning seemed to go bodes ill as it would go back to commerce under the Articles of Confederation. The chaos of commerce was an important impetus for our present Constitution.
I suggested to Senator Merkley that what Congress ought to have done is require states to enact the mandate. Federal funding would have been the carrot/stick insuring conformity. This tool is often used. It is the basis for insuring that state laws conform to federal law in unemployment insurance and federal highway programs. The down side is that there were questions that call even this into question.
Posted by: Richard van Pelt | March 31, 2012 at 06:41 PM
I wish everyone would read the Constitution of the United States, then read the breathtakingl overreach of the Obama Healthcare Plan; then try to convince me and other rational citizens exactly why this bill should be the law of the land. Do so without jargon or rhetoric, but with facts, and I predict you would fail.
Posted by: Jeo | April 01, 2012 at 06:53 PM
Your cartoon is wrong, the govt can't put you in uniform. We've been a volunteer force for a couple decades now.
Posted by: Mike | June 23, 2012 at 02:13 PM