Monday, April 9, 2012

Be careful what you wish for.

It's surprising how much of the reaction to the recent Supreme Court oral arguments on the constitutionality of the Affordable Care Act, by elements of both the left and the right, seems relatively sanguine about the prospect that the Court will declare the Act unconstitutional. The left hopes that if the Supreme Court decides that Congress has no power to involve private companies as a means of achieving some form of universal coverage, Congress will be forced to enact a single payer system as the only viable and constitutional health care solution. The right hopes that if the Supreme Court throws out the Affordable Care Act, that will allow Congress time to adopt more incremental, market-based reforms less disruptive to the status quo.

Both sides should be more worried that the other side's predictions might be correct. Throwing out this statute might just set back reform for a few decades, or it might also lead to more drastic reform. Nobody can say for sure. And whatever constitutional doctrine emerges from deciding this issue is also going to affect other issues in unpredictable ways. That is why those on either the right or left hoping that a thunderbolt from the Supreme Court will lead to their preferred solution, ought to consider that such a strategy might backfire big time, and that the Supreme Court is perhaps not best situated to resolve this issue at all. We the people can handle this ourselves. 

The ACA is already one of the central issues in this important election year. If we want to get rid of it, we don't need the Supreme Court to do that for us. All people would have to do is vote Republican, and the Republicans can be expected to keep their promise to repeal the Act as soon as they take office in January of 2013. If on the other hand, we are smart enough to prefer to keep this reform in place for at least the next four years, all we need to do is re-elect President Obama, and enough Democrats in Congress to allow the Act to be implemented.

The whole idea that there is some urgency to Supreme Court resolution of the constitutionality of the Affordable Care Act reflects a lack of faith in ourselves, and an almost unseemly interference with the political process by the justices. It reflects a need to turn important political and constitutional questions over to a small group of wise old men and women, a process that is at odds with democratic values. The Supreme Court would do well to hesitate before jumping into that role, and restore to the people our own capacity to determine what our Constitution means. Traditionally, the Court has taken its time to reach some constitutional issues, allowing them to percolate for years in the lower courts before issuing a definitive ruling. The Court has also shied away in the past from resolving legal questions that could just as well be decided through the political process. The Supreme Court used to invoke the "political question" doctrine to avoid deciding some constitutional issues, on the ground that they lacked the standards necessary to adjudicate certain questions. That doctrine has fallen into disfavor, and probably doesn't apply in this case anyway. But the Court can still rely on the doctrine of judicial restraint, a doctrine conservatives used to say they favor, which would counsel them to defer to the political process and uphold this Act of Congress. The Court could also resort to the simple expedient of holding their decision until after the election, giving the people the chance to weigh in on this issue before they do..

We can respect the Court's power to overturn the will of Congress as unconstitutional while also expecting that power to be used sparingly. In fact, we are likely to have more respect for the Court's power if it is used sparingly. And while it is in the Court's power in the short run to decide, for example, how to interpret a phrase such as the one which gives Congress the power to regulate commerce, ultimately it is up to us, the people, to decide what the Constitution means in that regard. That is because we have the power to elect the people who appoint Supreme Court justices.

The Supreme Court is not the proper body to help us come up with the best system of regulating the health care market. They are not insurance experts. They are not experts in the delivery of medical services. People who want the Supreme Court to step in so as to achieve their preferred health care policy are looking to the wrong institution to do that. Because the Supreme Court does not wield a scalpel; it wields a meat ax. The Supreme Court cannot devise an optimum health insurance policy. All the Supreme Court can do, it if were to declare this statute unconstitutional, is alter our understanding of the constitutional powers of Congress to regulate commerce. If it were to take such a drastic step, that would have implications, as I outlined in a previous post, way beyond health care. While it's true that there are a sizable number of people opposed to the ACA who want the Court to do just that, my sense is that most people are not looking for a Constitutional re-structuring of Congress's taxing or regulation powers. People either think the law should stand pretty much as it is; or think it does not go far enough toward a universal, public solution; or would just like to tinker with it in one way or another. If those are the kinds of problems we have with health insurance reform, we have the power to fix those problems ourselves through the political process. That will be messy, but more likely to achieve a consensus of what the people want, than relying on nine Supreme Court justices to solve this problem for us.

8 comments:

  1. "People either think the law should stand pretty much as it is; or think it does not go far enough toward a universal, public solution; or would just like to tinker with it in one way or another."

    Leave it, not enough, or "tinker" with it.

    Are you sure?

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  2. I base that statement on the polls. If you just ask people if they support or oppose the law, a slight majority oppose it, but that includes a lot of people who oppose it because they would prefer something like Medicare for all. Also if you ask people about specific parts of the law, such as requiring insurers to accept people with pre-existing conditions, or tax credits for businesses to enable them to offer insurance, or requiring insurers to let people keep their kids on their parents' policies, you find that support for those provisions goes up to 60 or 70%. The mandate is the only thing that has hardly any popular support at all.

    http://www.harrisinteractive.com/NewsRoom/PressReleases/tabid/446/mid/1506/articleId/954/ctl/ReadCustom%20Default/Default.aspx

    So my guess based on those polls, is that something like 20 to 40% of the population is hard core opposed to every part of this bill, perhaps for political reasons, and perhaps for philosophical reasons. They just don't want to support anything the Democrats passed, even if it was based on ideas that a lot of Republicans used to support, or they just don't want the federal government expanding their reach over health care because they have bought into the whole Tea Party movement. The remainder, something like 60 to 80% of the population, are the people I was talking about, who fall into three categories: they either like the act, or they wanted it to go further toward a single payer system, or they like parts of it but want to make changes. Maybe I shouldn't have used the word "tinker," because a lot of people would probably want to make substantial changes, but what I am saying is that most people do want the federal government to do something about fixing our very inefficient health care system.

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  3. << The mandate is the only thing that has hardly any popular support at all. >>

    We agree on that. Although I know you favor the mandate. Most of us feel the mandate is not something that should stand. Personally, I don't have a huge issue with it (specifically) because I already pay for my own insurance.

    The problem for me is the great parts of the bill (requiring insurers to accept people with pre-existing conditions, or tax credits for businesses to enable them to offer insurance, or requiring insurers to let people keep their kids on their parents' policies) cannot be funded without the mandate. As well, I do have concerns about what I might be told to buy or not to buy next.

    Lastly, the bill is poorly written, so large and so expensive, without sufficient thought to cost control or efforts to open markets. It looks to me like the entire bill needs to be unwound and then the good parts funded another way.

    I am saddened about that as I have a daughter who is a cancer survivor with a pre-existing condition and another graduating from university next month who I want to be able to insure. These issues are near and dear to me. I am disappointed by political power grabs when it comes to these issues.

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  4. I don't favor the mandate. And Obama never favored the mandate either. If you go back and watch the primary debates in 2008 between Obama and Clinton you will note that the main point of contention on health care was about the mandate. Obama was opposed to it. But it turned out that the mandate was the only way to get anything like universal coverage through Congress. And as you recognize, you have to have something like a mandate, or a tax, if you also want a rule that forces insurance companies to accept people with pre-existing conditions.

    It might have been better to fund coverage for the uninsured with some kind of tax. And if you bought your own insurance, or have insurance through your employer, you would get a credit on that tax. That's not too different from what we did, but maybe it would have been more understandable that way.

    Anyway, my point was not to argue about the merits of what we got with the Affordable Care Act. Hardly anybody is entirely happy with it, but that is the nature of the process, and we should trust ourselves to keep working on it, rather than rely on nine guys and gals with robes to fix it for us. They are not going to do a better job, and whatever they do will cause some other problems for us in some other policy area.

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  5. Thanks for that explanation.

    << It might have been better to fund coverage for the uninsured with some kind of tax. And if you bought your own insurance, or have insurance through your employer, you would get a credit on that tax. >>

    We agree on that.

    I understand your point about the robes. Thanks.

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  6. << I don't favor the mandate. And Obama never favored the mandate either.>>

    Perhaps you can clarify. Would you like the SCOTUS to rule against the mandate? Are you for the mandate but not for the mandate?

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  7. The mandate would not have been my preferred way of making sure everyone has health insurance. But as I said above, it was the only way that could pass Congress. It's the best we could do to get close to universal coverage.

    As far as the Supreme Court, the Court is not supposed to make decisions based on whether I like the mandate or don't like the mandate, or even based on whether the justices like or dislike the mandate. The only thing they have to decide is whether Congress violated the Constitution by enacting the mandate. And it seems quite clear to me, as well as to a lot of conservative judges and legal scholars (see the Fried interview cited in another post), that the mandate is constitutional under current interpretations. The Supreme Court would have to radically alter our understanding of Congressional power to rule the mandate unconstitutional. Which three of them seem ready to do. Whether Kennedy and Roberts will join those three is the only question.

    So, the mandate may not be the ideal way of going about this, but in my opinion, it would be a severe setback to the goal of achieving universal coverage and a more rational health care system, if the mandate were overturned. And maybe even more importantly, it would be a setback to our whole constitutional framework, and to our ability to govern ourselves, and therefore to our whole union, if the Supreme Court were to deny Congress the power to deal with these kinds of issues. Does that make it clear enough that a court ruling against the ACA would be a very, very, very bad thing?

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  8. << So, the mandate may not be the ideal way of going about this, but in my opinion, it would be a severe setback to the goal of achieving universal coverage and a more rational health care system, if the mandate were overturned. >>

    Thanks for taking the time to share your opinion. It's quite helpful to hear you explain it as clearly as you have.

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