Craziness prevails in Obamacare hearings

Healthcare reform may be in peril after the Supreme Court gave silly arguments serious consideration

Topics: Supreme Court, Healthcare Reform,

Craziness prevails in Obamacare hearingsPaul Clement speaks in front of the Supreme Court in Washington on Tuesday, as the court continued hearing arguments on the health care law. (Credit: AP/Dana Verkouteren)

The long-awaited oral argument on the merits in the challenge to the Affordable Care Act makes depressing reading, because so many judges seem to be ready to buy such silly arguments – arguments whose silliness was pointed out on the spot, sometimes even conceded by the challengers, but which nonetheless seemed to sometimes move Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito. (Justice Thomas, who characteristically didn’t say a word, is a sure vote to strike down the law.)

A lot of arguments have been made against the mandate, but we can roughly group them into two broad categories, which I’ll call 1) No Limits and 2) I Am a Rock.  No Limits claims that if the mandate is permitted, there will be no limitations on federal power. I Am a Rock claims that people have a constitutional right to some safe harbor where they and (more important) their money are immune from all federal regulation.

The No Limits argument was succinctly stated by Justice Kennedy:  “Can you create commerce in order to regulate it?” He worried that “this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce.”  Roberts worried that government could force you to buy a cellphone; Alito, burial services; Scalia, broccoli.

But there already is a pretty big limit on the commerce power:  United States v. Lopez, a well-known 1995 decision that invalidated a federal ban on handgun possession near schools. Justice Breyer nicely summarized its holding: “Congress cannot get into local affairs, particularly where they are noncommercial.” With that decision on the books, the No Limits argument is like saying that unless you buy my rickshaw, you will have no way to move from place to place. You have legs.  Everyone can see them. Lopez placed limits on federal power.  Everyone can see them. The claim that there will now be no limits is weird. It denies the existence of what is there in plain sight.

When Breyer raised this obvious objection, attorney Paul Clement responded: “Lopez is a limit on the affirmative exercise of people who are already in commerce. The question is, is there any other limit to people who aren’t in commerce?”  This is like saying, “Yes, I know you have legs, but you still won’t be able to move from place to place unless you buy the rickshaw!” Clement admitted that Lopez is already a limit on federal power. He’d just like the Court to create another one. And the new limit would really be much less important than the old one. He told Breyer, a few moments earlier, that the framers weren’t apprehensive about the breadth of the commerce power “because it’s a power that only operated once people were already in commerce.” But most of what we do is in commerce. We can’t realistically avoid having jobs and buying things. If the only way for me to avoid federal power is to live in the woods and eat berries, then that’s not much of a limit.



The I Am a Rock argument says that if I’m not actively engaged in interstate commerce, I’m somehow immune from federal regulation. Justice Kennedy was troubled that the mandate “requires the individual to do an affirmative act,” and “that changes the relationship of the federal government to the individual in the very fundamental way.” But Paul Simon’s lyric was intentionally ironic, because he knew that Donne was right: No man is an island. The notion that there is some corner where I can go and hide with my money, free from any obligations to anyone else, ignores the fact that the political and economic structure is what made it possible for me to have that money in the first place.

Alito thought it somehow unjust to regulate “somebody who is doing absolutely nothing about health care” by “requiring them to subsidize services that will be received by somebody else.”  Justice Ginsburg responded: “If you’re going to have insurance, that’s how insurance works.”  More important, that’s how any economy that is not pure, brutal laissez-faire works. If pre-tax income is deemed somehow sacrosanct, and no redistribution of it is legitimate, then it is even illegitimate for the government to act to prevent outright starvation, because the people paying for the food are not the ones eating it.

Some arguments partake of both. Thus, Scalia helped himself to the famous Broccoli Objection: “Everybody is in the market; therefore, you can make people buy broccoli.” This purports to be about limited federal power, but of course there’s no broccoli exception to congressional power. The presumption is that there’s some Tower of Saruman where the individual can shield himself from government compulsion.

What Solicitor General Donald Verrilli evidently could not bring himself to say – and this may be why his answers to No Limits were so tangled and hard to follow — is that there is no such safe harbor. Government already forces you to buy insurance you may not want, and thereby to subsidize others, via Social Security and Medicare. The check on the abuse of this power is a familiar one: the ballot box. George W. Bush’s failed Social Security privatization scheme tried to greatly reduce this cross-subsidization. Had he succeeded, the poorest old people, who have only Social Security to support them, would have gone from watch-your-pennies poverty to grinding, desperate poverty, just above the level of homelessness and starvation. Evidently the electorate didn’t regard it as a cruel injustice for the strong and rich to help support the weak and poor.

Once you admit that government has a general power of taxation and can spend for the general welfare – and the Constitution does expressly say both those things – then there really is no limit on its powers of redistribution. The hapless Verrilli said that he was not justifying “forced purchases of commodities for the purpose of stimulating demand,” but of course that happens whenever anything is subsidized, or whenever government purchases a lot of anything. Have you ever heard of the defense industry?

For that reason, the challenge to the mandate is weirdly formalistic. Justice Kennedy got this when he observed that Congress could have provided a single-payer healthcare system with the taxing power. “In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since … Congress can do it anyway, we give a certain amount of latitude. I’m not sure which … way the argument goes.”  Kennedy here seems to be toying inarticulately with the idea that Congress can’t do indirectly what it can do directly. But it’s hard to see why that would be so. (He also understood that the need for cross-subsidization is more powerful in the insurance industry than in any other industry. It’s a mistake to confidently count him as a vote against the mandate.)

The weird formalism of the challenge was brought out in a different way by Justice Sotomayor, who observed that the functional equivalent of the mandate would be a health tax imposed on everyone, with a credit for those who carried insurance. Clement thought there might be some limitation on that, but such credits are ubiquitous in the tax code.

A last purported limitation — a sort of I Am a Rock on steroids — came from Justice Scalia. Perhaps he was just being a devil’s advocate, but let’s be clear: That’s who he was advocating for. When Verrilli pointed out that we all pay for the uninsured because we’re obligated to care for them when they get sick, Scalia replied: “Well, don’t obligate yourself to that.” Verrilli replied that the Constitution did not “forbid Congress from taking into account this deeply embedded social norm.” A bit later, Scalia suggested that under the Constitution, “the people were left to decide whether they want to buy insurance or not.” He later suggested again that the problem could be solved by not requiring insurance companies to sell affordable insurance to people with preexisting conditions. Here the purported champion of judicial restraint proposes reading brutal, unregulated capitalism into the Constitution. Fundamental rights are violated if government acts to keep sick people alive?  The other objections to the law are merely confused. This one is evil.

Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 7
  • Close
  • Fullscreen
  • Thumbnails
    AP/Jae C. Hong

    Your summer in extreme weather

    California drought

    Since May, California has faced a historic drought, resulting in the loss of 63 trillion gallons of water. 95.4 percent of the state is now experiencing "severe" drought conditions, which is only a marginal improvement from 97.5 percent last week.

    A recent study published in the journal Science found that the Earth has actually risen about 0.16 inches in the past 18 months because of the extreme loss of groundwater. The drought is particularly devastating for California's enormous agriculture industry and will cost the state $2.2 billion this year, cutting over 17,000 jobs in the process.

       

    Meteorologists blame the drought on a large zone (almost 4 miles high and 2,000 miles long) of high pressure in the atmosphere off the West Coast which blocks Pacific winter storms from reaching land. High pressure zones come and go, but this one has been stationary since December 2012.

    Darin Epperly

    Your summer in extreme weather

    Great Plains tornadoes

    From June 16-18 this year, the Midwest was slammed by a series of four tornadoes, all ranking as category EF4--meaning the winds reached up to 200 miles per hour. An unlucky town called Pilger in Nebraska was hit especially hard, suffering through twin tornadoes, an extreme event that may only occur every few decades. The two that swept through the town killed two people, injured 16 and demolished as many as 50 homes.   

    "It was terribly wide," local resident Marianne Pesotta said to CNN affiliate KETV-TV. "I drove east [to escape]. I could see how bad it was. I had to get out of there."   

    But atmospheric scientist Jeff Weber cautions against connecting these events with climate change. "This is not a climate signal," he said in an interview with NBC News. "This is a meteorological signal."

    AP/Detroit News, David Coates

    Your summer in extreme weather

    Michigan flooding

    On Aug. 11, Detroit's wettest day in 89 years -- with rainfall at 4.57 inches -- resulted in the flooding of at least five major freeways, leading to three deaths, more than 1,000 cars being abandoned on the road and thousands of ruined basements. Gov. Rick Snyder declared it a disaster. It took officials two full days to clear the roads. Weeks later, FEMA is finally set to begin assessing damage.   

    Heavy rainfall events are becoming more and more common, and some scientists have attributed the trend to climate change, since the atmosphere can hold more moisture at higher temperatures. Mashable's Andrew Freedman wrote on the increasing incidence of this type of weather: "This means that storms, from localized thunderstorms to massive hurricanes, have more energy to work with, and are able to wring out greater amounts of rain or snow in heavy bursts. In general, more precipitation is now coming in shorter, heavier bursts compared to a few decades ago, and this is putting strain on urban infrastructure such as sewer systems that are unable to handle such sudden influxes of water."

    AP/The Fresno Bee, Eric Paul Zamora

    Your summer in extreme weather

    Yosemite wildfires

    An extreme wildfire burning near Yosemite National Park forced authorities to evacuate 13,000 nearby residents, while the Madera County sheriff declared a local emergency. The summer has been marked by several wildfires due to California's extreme drought, which causes vegetation to become perfect kindling.   

    Surprisingly, however, firefighters have done an admirable job containing the blazes. According to the L.A. Times, firefighters with the state's Department of Forestry and Fire Protection have fought over 4,000 fires so far in 2014 -- an increase of over 500 fires from the same time in 2013.

    Reuters/Eugene Tanner

    Your summer in extreme weather

    Hawaii hurricanes

    Hurricane Iselle was set to be the first hurricane to make landfall in Hawaii in 22 years. It was downgraded to a tropical storm and didn't end up being nearly as disastrous as it could have been, but it still managed to essentially shut down the entire state for a day, as businesses and residents hunkered down in preparation, with many boarding up their windows to guard against strong gusts. The storm resulted in downed trees, 21,000 people out of power and a number of damaged homes.

    Debbie Arita, a local from the Big Island described her experience: "We could hear the wind howling through the doors. The light poles in the parking lot were bobbing up and down with all the wind and rain."

    Reuters/NASA

    Your summer in extreme weather

    Florida red tide

    A major red tide bloom can reach more than 100 miles along the coast and around 30 miles offshore. Although you can't really see it in the above photo, the effects are devastating for wildlife. This summer, Florida was hit by an enormous, lingering red tide, also known as a harmful algae bloom (HAB), which occurs when algae grow out of control. HABs are toxic to fish, crabs, octopuses and other sea creatures, and this one resulted in the death of thousands of fish. When the HAB gets close enough to shore, it can also have an effect on air quality, making it harder for people to breathe.   

    The HAB is currently closest to land near Pinellas County in the Gulf of Mexico, where it is 5-10 miles offshore.

  • Recent Slide Shows

Comments

0 Comments

Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>