Time was, not long ago, when the right wing railed against the overreach of unelected judges with lifetime appointments who tried to usurp the power of Congress and impose their own vision of society.
That was before the Roberts Court. In fact, it turns out, many extreme Conservatives didn’t give a rat’s left foot about the overreach of unelected judges. They simply wanted judges who would impose their vision of society on the rest of us.
Justices Roberts and Kennedy will likely be the deciding votes on the question of whether the individual responsibility provision of the Affordable Care Act passes constitutional muster. But they will also decide whether the Roberts Court goes down as the most activist, partisan court in modern history.
Up to now the Court’s decision in the Citizens United case allowing corporations and billionaires to make virtually unlimited contributions to political candidates and “Super Pacs” stood out as its most glaring beacon of judicial activism. Citizens United reversed a century of legal precedent to reach a result that gives corporations the political rights of people, and distributes the right of free political expression in proportion to one’s control of wealth. Not exactly what Thomas Jefferson had in mind.
It was, of course, exactly what the far Right had in mind. Extreme conservative voices found themselves strangely silent in the face of the Supreme Court’s willingness to substitute its judgment for that of elected Members of Congress and to upend the bi-partisan McCain-Feingold law that had been passed to regulate federal elections.
But if the Court rejects the individual responsibility provisions in the Affordable Care Act, that will take the cake.
In fact, when Congress passed ObamaCare there were very few serious constitutional scholars who questioned the constitutionality of this provision.
There is no question whatsoever, that government in America has the right to require our citizens to pay for public goods or for services that we decide can best be provided through government.
Clearly, government can tax homeowners to provide the community with fire protection, for example. You might not need fire protection for years – or decades – or ever -- but government can decide that you have to pay into the fire protection district because if your house catches fire, it could affect the entire community.
But, says the right wing, government can’t require an individual to purchase a product from a private company they may not want or “need.”
Now I personally believe that it would make much more sense to expand Medicare to all Americans, and maintain one, efficient government-run insurance system that covers everyone -- and cuts out the need to pay huge profits to Wall Street and the big bonuses to insurance company CEO’s.
But some years ago, Conservative Republicans like Mitt Romney proposed providing universal health care coverage by requiring everyone to buy insurance from private insurance companies that are regulated through state-based exchanges.
When Romney was Governor of Massachusetts he got the state legislature to pass this kind of system – RomneyCare – which has been functioning in the state for many years and whose constitutionality has never been questioned by the Supreme Court.
There is no question that the government can require parents to pay private pharmaceutical companies for their kids’ vaccinations before they enter school – and it can also require them to attend school – because both issues affect the welfare of the entire community.
And there is no question as to the the constitutionality of the many state laws that require anyone who drives a car to purchase private car insurance.
But, you say, the difference is that you don’t have to drive a car – you can simply decide not to get a drivers license if you want to avoid buying private car insurance.
True. But the need for health care is not elective. Last time I looked, everyone ultimately dies. I don’t care how healthy you are, everyone inevitably has some health problem in their lives. The question is not whether you will need health care, the question is how you will pay for it when you do.
And in this respect, health care is entirely different than virtually any other commodity.
First, it is not entirely subject to the normal laws of economic activity. People can’t determine how sick they can afford to be, or which diseases fit into the family budget. You don't come home one day and say: "Gee honey I just got a raise, now I can have cancer!" Health care needs are not elective purchases like cars or TV’s.
And when it comes to health care, there is often little relationship between cost and value. A ten-dollar vaccine can add decades to your life, and hundreds of thousands of dollars of intensive care can add weeks or days.
But most important, while we might not agree that every American is entitled to a Cadillac (or in the case of Mitt Romney, two Cadillac’s), we do agree – as a society – that everyone is entitled to the best health care that is available no matter their wealth or station in life. We don’t believe that anyone should be left as roadkill after a traffic accident because he or she can’t pay for health care.
That being the case, someone can be young and healthy and vibrant one minute, and in need of massive, costly health care services the next.
The individual responsibility provisions of the Affordable Care Act simply says that everyone be required to pay – at a level they can afford -- for the fact that society won’t leave them by the side of the road to die after an accident – or when they are struck by cancer or a heart attack. It recognizes that in America everyone actually does participate in a form of health insurance system, whether they pay for it or not. It says that young, healthy people should not be allowed to be “free riders” in the system, until the moment they become sick or injured.
The fact is that in the current system, 40 million Americans are not formally part of health insurance plan – most because they can’t afford it without the kind of subsidies provided in the Affordable Care Act. Of course some are also uninsured because they think they are “immortal.” But being uninsured often means that you don’t go to the doctor because you can’t afford checkups or preventive care. It often means that you only go to the emergency room of a hospital or a neighborhood clinic when you already need costly health care interventions that would have been unnecessary had you had the security of a formal health insurance plan.
That costs all of us money, and because they often wait too long, it costs many of our fellow citizens their health and often their lives. What’s more, it places many American families one illness away from financial ruin.
And it could lead us all to financial ruin. The crazy-quilt way we pay for our health care in America has resulted in skyrocketing health care costs that include expenditures for administration and overhead that are far greater than in any other country on earth. These costs put our products and companies at a huge competitive disadvantage with our competitors abroad. That’s because we were the only industrial country in the world that did not provide universal health care to its citizens -- until we passed ObamaCare.
Well, you say, the states may have the legal right to require Americans to buy private insurance, but not the Federal Government.
Does anyone doubt that the massive health care industry is engaged in interstate commerce?
Congress’ power to regulate interstate commerce is explicitly granted by the Constitution. That power has been interpreted expansively and has a long established history, fortified by scores of rulings by previous Supreme Courts.
If the current Supreme Court holds that the Federal Government has no right to structure the national health care market place, it will be reversing years of precedent. It will brand itself as a band of judicial activists who substitute the will of unelected judges for that of the representative body of Congress.
If the Supreme Court strikes down the Affordable Care Act, it will not be protecting a minority’s right to refrain from buying health care. That is not possible, since everyone ultimately needs health care. If it takes that extraordinary step, it will simply be substituting its own political philosophy for that of Congress. Just as it did with Bush v. Gore, it will once again be turning the Supreme Court into an instrument of brazen partisanship.