April 13 ,2012
The Supreme Court Worries about Broccoli
Last week the Affordable Care Act, the health care reform law that Obama signed in 2010, finally made it to the Supreme Court to see if it would survive. Even though the law was signed two years ago, its most important reforms do not take effect till 2014, so until then the Act has not changed American health care in a fundamental way. In 2014 though, it will bring health insurance to about 90% of the population that is currently uninsured, which is over 45 million people.
There are actually three interrelated problems that Congress needed to deal with to accomplish that goal. First, it had to create a mechanism for people with pre-existing conditions (such as diabetes, surviving childhood cancer, depression, etc.) that are currently not able to get insurance at any price to be able to get health insurance at a reasonable rate. Second, it had to ensure that the problem of free-riders, people who have enough income to afford health insurance but choose not to purchase it, gambling that no major illness or accident will occur, and relying on the safety net of free care in case of emergency, is resolved by forcing everyone to participate in the insurance market. Finally, they needed to ensure that those who cannot afford to purchase health insurance are provided insurance in some manner.
Congress could have solved the problem in multiple ways. It could have expanded Medicare so that it insured all Americans and raised taxes for the program, thereby obliterating the entire private health insurance industry. Second, it could have taken over the health care industry, making doctors into government employees and hospitals into government-owned institutions. A third option would be to leave the system as it is, and just modestly expand certain elements to cover the uninsured. In this approach, Medicaid eligibility is increased so that most of the working poor get covered, private insurance companies lose their right to deny coverage to individuals based on pre-existing conditions, and subsidies to purchase private insurance are provided to those who make too much money to qualify for Medicaid but not enough to fully cover the cost of private insurance premiums. This is the approach that was advocated by Republicans in the 1990's, was supported by Newt Gingrich, and was enacted by Mitt Romney in Massachusetts in 2006.
The only problem with this approach is that it will only work if the young and healthy participate in the insurance pool. The free-rider problem needs to be resolved, especially if insurers are required to sell insurance to everyone. The temptation to go without insurance until an illness actually happens would collapse the system, as only the sick would buy insurance. So for this to work, the government must require everyone to purchase insurance, which the ACA does or imposes a penalty of 695 dollars per year. And it is this requirement, and the attendant financial penalty, which is the subject of the legal challenge to Obamacare.
Opponents argue that this mandate is an unconstitutional expansion of government power, that it does not forbid certain commercial activity, a power the government clearly has, but compels activity, a power which it allegedly does not. Critics go so far as to suggest that if the government has the power to compel citizens to purchase health insurance, then it would have the power to make citizens buy broccoli against their will. On the other hand, opponents do not challenge that Medicare and Social Security are constitutional, or that the government can compel a person to buy health insurance once they call an ambulance or go to an emergency room. So the government can make someone buy insurance at the time they use health care, but not in advance is the argument, which is logically absurd, but it is the corner they have painted themselves into. In fact, it is a rather odd position to argue that the government cannot be allowed to do policy "X", even though policy X is needed to solve a pressing national problem, because the government would then in theory have the power to enact policy "Y" which is obviously an absurd and ridiculous policy that solves no pressing national issue (such as forcing us all to buy broccoli), but at the same time hold that it is perfectly acceptable for the government to enact policy "Z" which is actually far more intrusive and disruptive to the private economy and is a far greater exercise of government control than "X" was (such as imposing national health care through taxation).
But the silliness does not even end there. Critics also concede that if the mandate which has a penalty of 695 dollars as its only enforcement mechanism was instead written into the law as a new tax on all citizens of 695 dollars per year, fully refunded to everyone who had health insurance of some kind, then it would be constitutional use of the government's power of taxation. Well, this is to say that the label that is attached can change something from unconstitutional to constitutional even though its actual effect on each and every American is identical. The inescapable conclusion is that the whole challenge to Obamacare is basically a semantic argument over nothing, and hardly the basis of overturning a law that is addressing a pressing national issue.
The broccoli argument is a version of the "slippery slope", that once the government gets to do one thing that is a necessary and proper function, it will then have the power to do something else that is absurd or ridiculous. But the government has always had that power. The President can launch a nuclear strike on Japan, and Congress can declare war on Canada, or raise taxes to 100% of income if it so chooses. The slippery slope is not defended by the Supreme Court; it is defended by democracy itself. A President and party that pursues absurd policies (perhaps invading another country on weak pretext and blowing through two trillion dollars and 30,000 dead and wounded in the process) will find itself repudiated by the public and its policies undone.
What is the most important function of government if not to protect the lives of its citizens, whether it be from terrorism, war, crime, epidemic disease, accidents or other life-threatening events? If anything is a "necessary and proper" act of Congress, it is to ensure that we have a health care system that can be accessed by all Americans when it comes our turn to need it, as it almost always will. Modern medicine is almost miraculous, and it impacts the lives of most of us in profound ways. The insurance mandate has its basis in the fundamental duty of government to protect the lives of its citizens. Congress could have solved the health care issue in different ways, this was the least intrusive and to strike it down because it was not intrusive enough is the truly absurd act.
