The constitution and me

The US Supreme Court seems poised to strike down the individual mandate, a key provision of Obama's Health Insurance Reform, or ACA.  I personally find implausible the argument that the other key provisions ought to stand if the mandate is struck down.  It's not only the absence of a severability clause, a clause which I understand the Court usually takes only as "advisory."  (I base this claim on Kevin Walsh's statement that "A legislature may try to control the severability determination with a severability or inseverability clause, but under current doctrine such clauses are neither necessary nor sufficient to control the judicial determination of severability."  Click here to see his article.)

Whether the other provisions are maintained or not, I find it very likely that they would be practically unenforceable:  it would not surprise me in the least that insurers could find some loophole where they would essentially practice as before, just not under the name of "insurer," or where they might be able to charge, say, an "insurance verification fee" to people with pre-existing conditions, so that, for instance, such people's premiums would be quite low, but they might have to pay a monthly fee of thousands of dollars.  I'm not saying this will happen, only that something like it is a distinct possibility.

I do not share, in other words, the optimism of other ACA supporters that striking down only the mandate would lead insurance companies to come begging for some sort of public option or would lead politicians from all sides of the aisle to come together to save universal health care.

Never before have I been so emotionally invested in what the Supreme Court decides.  In part, this investment comes from the fact that I know at least a few people who, if they lost their jobs and exhausted their COBRA insurance, would be uninsurable.  I've also had so many jobs that don't offer insurance that I find the platitude "well, they just need to work and be responsible" to be an unconvincing solution to the question of their access to health care.

It's not that I didn't care what the Court decides on other issues.  I did and do care what the Court said in Citizens United, Raich v. Gonzales, Heller, McDonald v. Chicago, Lopez v. US, Lawrence v. Texas, Boumedine, Bush v. Gore, Kelo, and Romer v. Evans, to name a few.  They simply seemed to me academic explorations, like reading a history textbook in real time, even though I know and care for people who are conceivably affected by some of these decisions, in particular Lawrence and Romer. 

I'd look at these decisions from on high and sometimes was at least inwardly critical of those who complained about them.  Bush v. Gore is illustrative here.  It may have been a crappy, poorly argued decision--I actually have not read it--but I had, and still have, a bit of sneering distaste for those whose main criticism seems to be that the Court made a decision at all, not that it made the wrong decision or that it justified its decision poorly.  "Don't they understand," I say to myself, "that in different circumstances and with a different outcome they would be cheering the Court's decision as the triumph of participatory democracy?"  Similar was my reaction to a baptist minister I knew--he was the father of a close friend of mine--who complained bitterly about Romer v. Evans but would have praised it highly if two justices had voted differently.

Now I have a better, that is, more empathetic, view of the frustrations.  In my more bitter moments I'm inclined to sneer, for example,  that Scalia--who acceded, if only reluctantly, to an expansive view of Congress's power to regulate growing medical marijuana for one's own use--should now be, so it appears, so insistent that Congress's power shall not be so expansive when it comes to ensuring access to medical care.

In my less bitter moments, however, I realize my sneer is poorly reasoned.  I see a distinction between the exercise of commerce clause power in Raich and that claimed in the ACA case.  The mandate, I believe, is truly unprecedented and is at least arguably unconstitutional by most good-faith readings of the Constitution.  I even so believed as early as December 2009, before the ACA had been passed and before a strong legal movement had begun to argue against the mandate's constitutionality.  (I'm not necessarily claiming I came up with this belief on my own....it's possible I had read others, say at the Volokh Conspiracy, who might have raised the objections that early.  I simply don't remember how I came to that conclusion.)  I also believe that supporting something which however just in other respects goes against a good-faith reading of the Constitution creates the precedent for less just seizures of power and violations of civil liberties and other rights.  It's no defense for me to say that the civil liberties have already eroded and that therefore we might as well enact something good.

Moreover, the ACA is not an unqualified good.  It's a gamble.  Even I can see that.  The mandate also strikes me, and has stricken me for quite a while, as a bit too much of an "x factor," by which I mean it represents some simplistic and probably specious reasoning:  just throw almost everybody into the insurance pool and that will somehow be enough to take care of costs, or at least premium prices.  I concede that the ACA, even if it works in a way that I would call "successful,"  will probably increase the price of premiums for at least a majority of Americans and not only the vilified 1 per centers.  In my view, if the increase is moderate and if thereby poorer people can have access to more affordable health care when they get sick, then the law will have been a success.

I supported and continue to support the ACA because I think it is the best option that is likely to be enacted.  It may be true that a single-payer system might work better or that a truly market-oriented insurance system, with due care taken to treat "uninsurable" people and the very poor might be better.  But I don't see the first as happening, and a single-payer system, or even a "robust public option," would have its own problems that cannot be legislated away simply by Congressional decree.

And whatever the virtues of the market approach, the version that would likely be passed would probably not end the employer tax exemptions for insurance, and the "market" reforms would be limited to a few additional tax breaks and some optional pilot programs that only a handful of states would try for a few years before abandoning.  The version would the status quo ante ACA that would entrench the prior system, albeit with a few gestures to subsidizing poorer people.  (I don't mean this as a jab against the market idea, only that I suspect it couldn't be enacted robustly enough to work.)

So here I am.  I continue to hope that the ACA will be sustained, but I realize that it would be folly to claim that sustaining it would be a cure-all or that invalidating it would be an unalloyed bad thing.