It’s constitutional, just not good policy….

Today marks the end of a three day Supreme Court hearing of the Patient Protection and Affordable Care Act, otherwise known as  President Obama’s signatory Health Care bill that was signed into law on March 23, 2010. The hearing started off on Monday and continued the following day with a discussion on the constitutionality of the individual mandate, the core provision in the President’s health care plan that states that every citizen must buy health insurance or pay a fine. Today, the hearing ended with a discussion on the 450 or so provisions in the law, including an expansion of Medicaid. According to quite a few sources, the existence of the individual mandate appears to be in jeopardy as the court’s conservative judges do not think it is constitutional, viewing it as an overreach of the federal government. Would the Supreme Court be right in throwing out the individual mandate, and if they are, how does that change the politics and the future of health care in the United States?

Conservatives insist that the mandate is too daunting, and that if it survives, it sets a precedent that enables congress to allow the federal government to enact any law it sees fit. They also claim the mandate is unconstitutional because it forces Americans to buy a product they might not need or want. To be sure, the mandate would introduce an entirely new paradigm in terms of the federal government’s power in regulating the economy, and health care happens to be the largest sector of the economy. Justices Roberts and Scalia aggressively argued that if the federal government could force people to buy insurance, then it could also force people to buy healthy foods like broccoli. That is an interesting (and somewhat hyperbolic) slippery slope case to argue, but it does raise a very valid point: If the government can force everyone to buy health care, does the line of what the government can and can’t force you purchase cease to exist? Also, will the mandate make it necessary to create another new giant bureaucracy to enforce the controversial measure?

On the other hand, I’m not a lawyer (clearly), but there are a few problems with the broccoli argument in my view. One problem with this argument is that the health care law does give the option for people not to buy health insurance, but they are subjected to a fine if they choose to rebuff the mandate. The other problem is that under the President’s health care plan, privatization still exists in the health care industry. The law does not specify which health care provider or you must choose or what plan you must purchase. Similarly, the government could not tell you which company to buy your broccoli from or how much broccoli you must buy. Also, a mandate for health insurance is a lot more feasible than broccoli, as every kid in America would protest vociferously due to not being able to eat their desert. The point is, it’s not entirely unreasonable to argue that a health care mandate does seem entirely constitutional. We’ve already seen that conservative judges on two appellate courts have agreed with this sentiment.

Now, does this mean I support the entire health care law? No, I do not support the health care law in its current form and if I were a member of congress (God forbid), I would have voted nay. There are several reasons for my objection to the President’s bill. Mainly, there is no evidence the bill will control costs, provide better care or prevent the government from attenuating our entitlement society. Expanding medicare, which is already on a path to insolvency, is not the ideal way to get people on a path to self-dependency. It’s not that I think the idea of universal health care is abhorrent, it’s that this way of going about it gets more people covered into a privatized system with the limited possibility of actually lowering the costs for everyone. The added bureaucracy and regulations will end up creating more hindrances in an already over-bloated health care system. I personally wanted congress to pursue the Wyden-Bennett option, also known as the Healthy Americans Act. Congressman Ron Wyden (D-Oregon), co-creator of the bill, stated that this option would save Americans $1.45 trillion over the next decade. Conversely, the Congressional Budget Office (CBO) recently stated that the President’s health care bill would cost $1.76 trillion over the next decade.

Should the Supreme Court strike down the individual mandate, there is one person who would benefit greatly from this ruling: The inevitable Republican nominee Mitt Romney. You may remember how Mr. Romney incessantly made the argument during the Republican debates that he had nothing to regret when he implemented a health care plan as governor of Massachusetts that was very similar to the President’s bill because states have the capacity to mandate their residents to do things that the federal government cannot. If the Supreme Court rules the individual mandate unconstitutional, Mr. Romney may greatly benefit from his clairvoyance and will insist the Supreme Court agreed with the position he took in his book, No Apologies. Moreover, we’ve all seen the latest polls on the President’s health care plan, and they do not bode well for the President. A significant number of Americans want the Supreme Court to at least repeal the individual mandate, and the rest of the law only gets support from certain constituencies. Mr. Romney can greatly benefit from this if he offers his own version of a federal health care plan.

So while I don’t think the President’s health care law is unconstitutional, I still think it’s bad policy. That being said, Republicans have to offer more solutions than just advocating for the Government to extricate itself from the health care sector and insist that all we have to do is allow insurance companies to sell their plans across state lines. One, there’s no guarantee that insurance companies will offer cheap plans for young individuals that only cover certain services that would apply to them. Two, it doesn’t solve the issues that the President’s plan tackles, such as forbidding insurance companies to deny people with pre-existing conditions. Three, the goal of getting government out of health care is simply unrealistic. We already have government involved in health care for the poor, seniors and veterans, and I doubt anybody would seriously consider rescinding these services. The goal should be to get the Government to provide universal coverage, but to allocate the role of encouraging the means to offer different services at lower costs to private companies. As David Brooks recently put it, “centralize the goals, but decentralize the means people take to get there.”

(H/T: Phillip Klein and David Brooks)

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