Court rRuling on Obamacare

[Prospero]

A very powerful article in the Sunday Times of London by Andrew Sullivan entitled "A Very American Coup - By The Judges" showing how the US Supreme Court has now become a key political player on the side of the Republicans - (for instance yesterday refusing to even re-examine the Citizens First ruling and on thursday poised to strike down the affordable care package.) The court was stacked with Conservatives under Reagan and George W Bush. I can't link to the Times article here because of the News Corp pay wall but it is worth seeking out. It is succinct where other deeper analysis such as those in NY Times and the New Yorker are very long reads.

[Prospero]

Here is a well argued piece from the Economist that examines the slippery slope argument.

Obamacare and the Supreme court
I am starting to hate broccoli
Mar 28th 2012, 16:05 by M.S.

CAN someone point me to a conservative who resolutely opposes Obamacare, but thinks it is constitutional? There are probably still a few out there (as of just a few weeks ago there were quite a few conservative legal scholars who believed the court would confirm the law's constitutionality by a wide margin), but I'm not hearing much from them today. Nor am I hearing from any liberals who support universal health insurance, but think the mandate is unconstitutional. Partisan identification is overwhelmingly the easiest means of determining where anyone will come down on any question with a political valence—on the street, in Congress, and to all appearances (and for the umpteenth time this century) on the Supreme Court.

So, that's life. Because partisan identification so overwhelms principled commitments on this question, there is, at this stage, very little point in writing anything about the Supreme Court's deliberations on Obamacare that is addressed to both those who think the law is constitutional, and those who don't. It is, of course, my belief that it is supporters of the unconstitutionality argument who have managed to convince themselves of transparently absurd distinctions in their zeal to have the law struck down; but at this point in the trajectory of the political argument, they think the same of me. There might be some readers out there in America who are still amenable to persuasion one way or the other, but they are probably low-information observers who are unlikely to be reading this publication.

Even so, I've decided to look for something to say about the second day of testimony that could actually be read without a sneer of dismissal by someone who, unlike me, thinks the law is bad policy and unconstitutional to boot. I think there's actually a slight window of opportunity in the question Anthony Kennedy posed to solicitor general Donald Virelli: "Can you identify any limits on the commerce clause?" At various points in the oral arguments yesterday, justices raised the concern that if the government can require people to buy health insurance, it could also require people to buy any other good on the private market; specifically mentioned were broccoli and cell phones. It's a slippery slope, the judges were saying. What principle could limit Congress's power to make people buy things?

One such limiting principle might be that a measure had to be necessary as part of a reasonable piece of legislation intended to achieve a major, legitimate public end. I think this would be sufficient to rule out idiotic measures such as requiring Americans to buy broccoli or (in most cases) cell phones. Try, for example, to think of a major public goal that could be reasonably addressed by a programme which would entail the government ordering people to buy broccoli. What could such a goal possibly be? Increasing the public's intake of vitamin B so as to reduce public health-care costs and improve public health? But mandatory private broccoli purchases would be completely ineffective at achieving this goal; the government might order people to buy broccoli, but it can't force them to eat it. It would obviously be more effective (and incontestably constitutional) to subsidise broccoli so that those who do have some inclination to eat broccoli, rather than Big Mac's or what have you, would be more likely to do so. Ordering people to buy broccoli would be an arbitrary, irrational and ineffective means to accomplish any public health goal, and for that reason such a law could be ruled unconstitutional.

How about cell phones? Try to imagine what kind of legitimate public goal might be achieved by requiring everyone to buy cell phones. Imagine, for example, that we wanted to enhance public safety by ensuring that all victims or witnesses of crimes could immediately call 911. Obviously many people can't afford cell phones, so the government would have to provide subsidies for those who couldn't, while also means-testing to ensure the subsidies aren't handed out to people who would have bought cell phones anyway. This starts to seem possibly reasonable. But does universal cell-phone possession really enhance crime reporting? That seems doubtful; so many people already own cell phones that the number of witness reports seems unlikely to rise by much if some of the few people who don't yet own them acquire them. And, as with the broccoli example, requiring people to buy cell phones doesn't mean the federal government has the power to require people to carry them; and people who currently can afford cell phones but choose not to buy them—ie, those who might suffer from a law forcing them to make commercial decisions they have the power to make but don't want to—would be those least likely to actually carry them. This suggests the law is an irrational means of achieving the objective, and could be ruled unconstitutional.

But these examples also suggest that under some circumstances, requiring people to buy things besides health insurance on the private market might be a reasonable or necessary means to achieve an objective. Imagine, for example, that America decided to eliminate its standing army and go back to a model of pure territorial defence based on a "people's war" guerrilla strategy, with required militia service for all able-bodied citizens. This seems pretty unlikely, but it's not utterly impossible. Having made that decision, would it be constitutional for the government to order everyone subject to militia service to buy an assault rifle on the private market, providing subsidies for those who can't afford one? This seems like it might be a reasonable means to achieve a legitimate public goal. It's much more likely that the government would simply buy everyone a rifle for reasons of standardisation, and you'd have to allow exceptions for reasons of religion or conscience, just as we do with the draft. But in principle ordering everyone to buy a rifle doesn't seem like an unconstitutional way to achieve the goal of national defence, if we decided to go the home-militia route.

The standard outline above, obviously, is the "necessary and proper" standard laid down in McCullough v Maryland. I am not a lawyer, and there are a whole lot of incredibly smart lawyers in America who don't think this clause is a sufficient limit. But I don't really understand why.

Put it this way: None of the slippery-slope examples I outlined above really quite make sense in the world as it stands today. Other than health insurance, I can't actually think of a single example of any other type of good that the government might rationally or reasonably order citizens to buy on the private market. Whether or not you think they're a good idea, individual mandates are clearly a rational-seeming way to solve problems in the health-insurance market, rational enough that they appealed to the Heritage Foundation, Republicans in Congress, Mitt Romney and so on, and eventually (and reluctantly) to Democrats. But I can't think of any other area of the economy or society where having the federal government order every citizen to buy a good from a private provider seems like a reasonable solution to a problem, or has seemed so to anyone else, Democrats, Republicans, or what have you. And this is why the slippery slope argument that Mr Kennedy is worried about seems inconsequential to me. I just can't imagine where such a slope could slip to. I'm hoping is that this is a genuinely helpful explanation of how I see things, for people who disagree with me about whether Obamacare is good policy.

[Stavros]

Prospero I think you have to accept that many Americans have a concept of health care that is quite different from what we have in the UK; even if we don't agree with it. In some of the coverage of the debate you can hear people arguing with someone saying Why should I pay for your health care?

In the UK we have a national service that not only provides the full range of health care from cradle to grave, but also trains doctors, nurses and the ancillary staff from radiographers through to occupational therapists, haematologists, dentists and so on and so on. Yes, the result is the largest government department, a multiplicity of health authorities and so on: but it is paid for from our taxes, it belongs to us.

The difficulty for me is in trying to separate out all the possible different scenarios when -according to that American- I should resent paying for your health care -examples:
I am paying for the consequences of someone's smoking habit when they fall ill with cancer -I am paying for surgeons to repair someone's broken bones because he drove his car into a tree when drunk or high on drugs; I am paying for someone's SRS because they are convinced they are a woman trapped in a man's body.

BUT, the treatment of someone's cancer is part of a pool of science theory and practice that has many other applications and which may benefit me when I fall ill with another disease; the orthopaedic knowledge gained from patching up drunken idiots who should not be driving may help me if I need a hip or knee replacement operation when I am 75; the SRS may benefit my significant other.

There are always scientific and social benefits to medicine and surgery, the benefits are available to all, so why not create national systems which are funded from modest taxation and which guarantees treatment at a general level across all age groups, and without regard to the ability to pay, or any other qualifying rule? Americans pay for their national security, what could be more important than the 'nations' health? I sometimes wonder if the Americans opposed to health care think of themselves as being part of the USA...

[Prospero]

I sometimes wonder if the Americans opposed to health care think of themselves as being part of the USA...

I think the crisis currently facing the US goes deeper than simply the issue of health care. This is of crucial importance but it is the frontline in a deeper and more disturbing battle.

And of course i understand the US attitude to health care. Half my family live there.

[Stavros]

Could you be more specific about the issues that you are thinking of? Is it similar to the attempt that is being made in the Uk to 'roll back the state' from its presence in the market place and in terms of social policy (and in the UK, education)?

[Prospero]

Find and read the Andrew Sullivan piece Stavros - or any number of lucid explications of the hijacking of the US political process by big money with the collusion of a Right wing dominated Supreme Court. I've posted a few from the NYRB.

[buttslinger]

Should be a CNN kind of day tomorrow.....

[flabbybody]

It should be fascinating. In the event the Court overturns the mandate (currently a 50-50 proposition on the eve of the announcement), I'll be most interested in how Obama's people spin this. No matter what the President says it will be colossal setback to his first term resume. No one can say if it will cost him re- election but I'd be very excited if I were a Romney speech writer.

[buttslinger]

Hey Flabbybody, the RNC wrote this script a few months ago, or maybe some guy in a chalet in Switzerland or something. Roberts thinks what they want him to think, that's why he's in there. You think the powers that be are going to let the goddam PRESIDENT fuck with their game?????? When Obama loses, WE lose. These charts ain't no accident.

[flabbybody]

stavros said it best. When it comes to your wealth class, cancer is a disease of equal opportunity