A version of this post originally appeared on the author’s blog.
The Supreme Court began the second day of its hearings this morning over the health care law, and news reports indicate that the four justices on the fence — Kennedy, Scalia, Roberts and Alito — opened the session with some tough questions for the Obama administration’s legal team. The key issue under debate today is whether the federal government can require citizens to purchase health insurance from private vendors or else pay a penalty.
This issue is significant not just within the scope of this case, but as an emblem of the current political divide in the nation. On one side, conservatives who oppose the law argue that it violates individual rights and liberty by forcing people into the marketplace. On the other side, liberals who support the law maintain that it performs the necessary task of wrestling down ever-rising health care costs.
However the Court rules, the case will quickly go down in the books as a defining statement on the modern meaning of the Commerce Clause, as well as on the power of the federal government to regulate the economic activity of citizens. The case is also a testament to the functionality of our government, something that has been subjected to grave doubts over the past few years. Despite an effective labeling campaign by opponents of the health care law, so-called “Obamacare” was passed in both the House and Senate after months of vigorous debate, signed into law by the president, and then challenged in the judicial system. Now it reaches its final showdown at the nation’s highest court. Whatever the outcome, to trace the path of this piece of legislation over the past two years is to witness a clinic in technically sound American democracy. The rest, as they say, is just politics.
Solicitor General Donald B. Verrilli, Jr., who is arguing the case for the Obama administration, will rely on a variety of precedent (Wickard v. Fillburn, Gonzalez v. Raich, et. al.) as well as the Supreme Court’s recent tradition of generously interpreting the Commerce Clause. The appellants’ contention is that the government may not require economic activity by citizens under pain of financial penalty. Mr. Verrilli will urge the Court to focus on a different question, namely whether Congress may regulate the manner in which citizens acquire a service they will inevitably need.
Some commentators have likened the issue to other situations involving the acquisition of insurance. Automotive operators, for example, are in violation of law if they operate their vehicle without valid insurance. There is no legal requirement, however, to own or operate a vehicle. The difference between health and other forms of insurance, Mr. Verrilli will argue, is that every person will certainly need health care at some point in their life. If that argument holds water, then the case becomes less about the government coercing citizens to engage in voluntary economic activity, and more about concocting a solvent scheme for financing a needed service. This latter construction, most experts say, should be viewed by the Court as a proper exercise of the government’s authority to regulate interstate commerce.
Regardless of the fate of the health care law, there will be further obstacles down the road to providing solvent and sustainable health care to all Americans. The expenses of Medicare continue to bloat at an alarming rate, while proposals to raise the retirement age for the first time since the passage of Medicare in 1965 have run up against staunch and wide-ranging opposition. Bringing a greater number of younger, healthier people into the insurance pool — one of the effects of the individual mandate — will bend the cost curve down, but the basic structure of Medicare will still require further consideration. In the 1960s, when Lyndon Johnson signed Medicare into law, the life span of the average American male was about 65. Today it is almost 80. The original logic for Medicare was that the government would ease the burden on people who could physically no longer be part of the workforce. Today, with most people retiring in their 60s and living another 15-20 years on average, Medicare has morphed from a safety net into a broad pension program of sorts. This change has had a disastrous effect on the national budget, and will continue to wreak havoc unless some tough compromises are made.
One of the strange outcomes of the legislative debate that produced the law currently under consideration, is that had the Obama Administration’s original campaign for single-payer health care been successful, there would be no individual mandate to review. Under that proposed scheme, all Americans would have received free, government-administered health care financed by an increase in income taxes. However, because of conservative opposition to universal health care, that proposal never made it out of the gate. The ensuing compromise produced a law that mandates individuals to purchase insurance from private providers. That mechanism, which was not a part of the original policy conceived by the president and many liberal supporters in Congress, is now the most contentious element of the law.
The interplay between politics and law is a perennial — and often festive — element of American governance. Legislative debate, combined with a restless media, has been known to produce strange and unpredictable outcomes, especially in recent times. Yet, the nature of our political system is that those outcomes reflect, in some unsettled sense, the will of the people. Thus, in cases such as this, one cannot help feeling a modicum of empathy for the concept once termed by the great Yale Law Professor, Alexander Bickel, the “counter-majoritarian difficulty.” Which is to say, the people have made a law for themselves, so what place do nine judges have in saying anything further about it?