Obamacare Supreme Court case a bad joke

By John Cassidy

readersupportednews.org

March 27, 2012 - Forgive me if a wry tone eludes me when it comes to today’s proceedings in the Supreme Court. As far as I am concerned the whole thing is absurd—yet another example of how America’s antiquated system of government, and its determined refusal to accept the economic realities of the modern world, is undermining its future.

Early on in this morning’s session, Justice Anthony Kennedy, the swing vote on the court, said that the U.S. government had a “very heavy burden of justification” to show that an individual mandate to purchase health-care insurance was constitutional. Really? Only if Kennedy and his Republican-appointed colleagues are willing to throw out economic logic as well as seventy years of legal precedent, which, judging by their harsh questioning of Solicitor General Donald Verrilli, Jr., they may well be.

The economics isn’t very complicated. The health-care industry, which makes up about a sixth of the economy, is rife with inefficiency, waste, and coverage gaps. In seeking to remedy some of these problems, the Obama Administration made a deal with the private-insurance industry—the same deal Mitt Romney made when he was governor of Massachusetts. On the one hand, the federal government barred the insurers from discriminating against the sick and the elderly, thereby raising the industry’s costs. On the other hand, the feds obliged uninsured individuals to purchase coverage, thereby expanding the insurers’ revenues. We can argue whether this was the best way to proceed. (At the time the bill was passed, I raised some doubts about how much it would cost.) But it was a straightforward instance of the central government seeking to redress the failures of the private market—something akin to imposing fuel standards on auto manufacturers, providing state pensions, and forcing banks to hold adequate capital reserves.

In a modern, interconnected economy, activist government policies to remedy market failures are essential. Rather than confronting this argument head-on, which would involve publicly defending the actions of the banks, the insurers, and the industrial polluters, the right has settled on a strategy of trying to undermine the government through the courts, where its pro-corporate agenda can be repackaged as a defense of ancient freedoms.

Thus the bogus constitutional challenge to Obamacare, and, in particular, the individual mandate. As my colleague Jeffrey Toobin pointed out in an excellent post this morning, the issue resolves around the Commerce Clause of the Constitution, which gives the federal government the power to “regulate Commerce … among the several States.” Where does this power begin and end? In the famous 1942 case of Wickard v. Filburn, the Court said that the federal government’s authority extends to any activity that “exerts a substantial economic effect” on commerce crossing state lines.

The case involved Roscoe Filburn, an Ohio farmer who wanted to grow more wheat than he had been allotted under quotas introduced during the Great Depression to drive up prices. In deciding against Filburn and in favor of the Department of Agriculture, the justices pointed out that the actions of individual wheat farmers, taken together, affect the price of wheat across many states. That is what gives the federal government the power to limit their actions.

Under the Wickard v. Filburn standard, the individual mandate is clearly constitutional. If ever there was an industry that crosses state lines, it is health care. As the Solicitor General’s office noted in its brief to the Court on the merits of the case, health-care spending “accounts for 17.6 percent of the nation’s economy.” From a legal perspective, that is where the matter should rest.

But, of course, this case isn’t ultimately about the law—it is about politics. The four ultra-conservative justices on the court—Alito, Roberts, Scalia, and Thomas—are in the vanguard of a movement to roll back the federal government and undermine its authority to tackle market failures. The movement began in the nineteen-eighties, when the Federalist Society got its start and Ronald Reagan appointed one of its members, Scalia, to the court—and for thirty years it has been gathering strength.

Thus the creation of a new legal theory to sink Obamacare: the idea that while the federal government might well have the authority to regulate economic activity, it doesn’t have the right to regulate inactivity—such as sitting around and refusing to buy health insurance. Now, it is as plain as the spectacles on Antonin Scalia’s nose that opting out of the health-care market is about as realistic as opting out of dying. But necessity is the mother of invention. And, judging by his questions this morning, it is this invention that Kennedy has fastened on.

As I said at the beginning, it’s a bad joke—upon us all.