Earlier this month,
the Green Party called on the Supremes to strike down the individual mandate and put an end to the Affordable Care Act (ACA). Their argument is that the ACA is merely a multibillion dollar public subsidy for the insurance, pharmaceutical and medical industries. This is certainly true. But they go on to predict that if the ACA were declared unconstitutional, this would hasten the passage of a single payer, or Medicare for All (as they call it), health care system. (The usually astute economist Robert
Reich has made a similar argument.)
As much as I sympathize with their goals, I find that hard to believe that a single payer health care system will make its way through Congress in the near future, even in the unlikely event that a re-elected President Obama were to support it. If he didn't have the votes to support even a public option in early 2010, when the Jackasses controlled the House and had a veto-proof majority in the Senate, what are his chances of passing an all public system in 2013? And how will an overturning of the act by the Supremes affect Obama's chances of re-election? Are you ready for the endless barrage of super PAC-financed TV ads reminding voters that Obama's “signature accomplishment” has been rejected by the courts?
The public also wants the ACA to be overturned. According to a
New York Times poll,
29% want the Supremes to overturn the individual mandate, which requires all Americans to purchase health insurance, and another 38% want them to overturn the entire law. After three days of debate, it looks as though they will get their wish.
This morning's Washington Post reports that the Supremes “may be on the brink of a major redefinition of the federal government's power.”
Justices on the right of the deeply divided court appear at least open to declaring the heart of the overhaul unconstitutional, voiding the rest of the 2,700-page law and even scrapping the underpinnings of Medicaid, a federal-state partnership that has existed for nearly 50 years.
Of course, you can never predict the Supremes' decision solely on the basis of oral arguments. But if you doubt that they are seriously considering it, remember that they spent 1.5 hours Wednesday discussing what should happen to the rest of the ACA if—or is it when?—the individual mandate is overturned.
This is not a game. With all its flaws, the ACA extends health insurance to 32 million people not previously covered. Without that coverage, we return to a status quo in which
45,000 Americans die every year from lack of health insurance. The Elephants don't have an alternative plan. Their plan B is to “let them die.”
I can
point you to a serious article giving at least three constitutional bases for the ACA, but in fact, it's a no-brainer. John Cassidy
has referred to this legal case as a “bad joke.” Robert Parry
refers to the justices as “clowns.” Who could possibly believe that Congress has no right under the
Commerce Clause to regulate the health care, an industry which accounts for 17.6% of GDP? In 2005,
Justice Scalia wrote a concurring opinion in
Gonzales v. Raich, in which argued he that the Commerce Clause gave government the right to prohibit the sale of medical marijuana. I don't know what percentage of the nation's health care dollars are spent on medical marijuana. Let's say it's about one-tenth of 1%. Are the conservative justices saying that the sale of medical marijuana is important enough to affect interstate commerce, but the entire health care industry is not?
Seriously?!? It's hard to see this as anything but a farce.
In my opinion, all the verbal jousting going on this week is intended to mystify the public and give judicial cover to the five conservative justices, so they can do what they intended all along: Help the Elephant Party to ensure that Barack Obama will be a one-term president whose four years in office are remembered as a failure. This should not be unexpected. Previous lineups of the Supremes have already allowed politics to trump both
the Constitution and
legal precedent.
This brings us to the Supreme irony of Obamacare. It appears that the ACA will be destroyed by the individual mandate—an Elephant proposal that Obama was initially reluctant to accept, and that he agreed to in order to save our privatized health care system from the threat of single payer.
During the 2008 campaign, Obama opposed the individual mandate, which Hilary Clinton supported, because he knew it would be perceived as a restriction of individual freedom and there would be a backlash. Why did Obama eventually agree to include something as unpopular as the individual mandate? Basically, it was to save the private health insurance companies.
Insurance companies make money by covering healthy people and denying coverage to those who are sick—or refusing to pay the medical bills of their clients who get sick. That means that in this country, if you develop a serious illness, you are for all practical purposes uninsurable. Americans in this unfortunate situation either become dependent on some sort of public program, die sooner than they otherwise would, or both.
To avoid this, you could require the insurance companies to insure everyone (called guaranteed issue). But if they are forced to cover sick people, they will charge them an amount that most of them can't afford. To avoid this, you could require the insurance companies to charge everyone the same amount regardless of their prior medical history (called community rating). But if you have both guaranteed issue and community rating, there is no logical reason for healthy people to purchase insurance. They can simply wait until they get sick, confident that the insurance companies will have to cover them at an affordable rate. This is known as adverse selection—the tendency for people who buy health insurance voluntarily to be less healthy than the general population. This causes insurance company profits to go down, rates to go up for everyone, and eventually the entire system descends into chaos. To avoid this, you have to require everyone to buy insurance—the individual mandate. This ensures that there are enough healthy people in the system to spread the risk and make insurance affordable for all.
But there's another way. You could simply bypass the insurance companies. Collect the money that people would otherwise pay for insurance premiums up front as taxes and use it to insure everyone. In other words, you could establish a single payer system. This is how social security and Medicare are financed. It would be politically difficult to argue that they are unconstitutional (although some of the arguments currently being advanced against the individual mandate imply that they are).
There's something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that's fine, but if the government wants to preserve private insurance, it can't do that.
Of course, single payer would eliminate the health insurance business.
But that's exactly what we should do! Health insurance consumes about 20% of medical spending and provides no useful service in return. It's a giant parasite that sucks up our resources, even as it adds additional misery to the lives of some of our sickest citizens. Eliminating that 20% surcharge virtually guarantees that the extra amount people pay in taxes for single payer will be less than they are currently paying for health insurance.
(That's not the only way single payer will save money. Single payer will give the government the bargaining power to negotiate lower prices for prescription drugs and to rein in the exhorbitant fees paid to doctors and hospitals. Needless to say, big pharma and the for-profit hospitals oppose it too.)
So why couldn't Obama propose a single payer health care system? As the media put it, single payer was “not politically feasible.” That's media-speak for a proposal that is favored by the majority of the American people, but opposed by the “corporate persons” who finance our political campaigns. And in a political system that's basically just legalized bribery, those who finance the campaigns are the only ones who really matter. The richest 1% not only bought and paid for Obama, but most of Congress as well. Had he proposed single payer, he would have faced opposition not only from the Elephants but also from the majority of his fellow Jackasses.
The individual mandate was a conservative idea that President Barack Obama adopted to preserve the private market in health insurance rather than move toward a government-financed single-payer system. What he got back from conservatives was not gratitude but charges of socialism—for adopting their own proposal.
No matter how often he kisses their behinds, the 1% will never accept the legitimacy of Obama's presidency.
Give some credit to the conservative propaganda apparatus. They have successfully framed the individual mandate, the central issue of the debate, as an attack on personal freedom. “The government is trying to force you to buy health insurance.” This is reinforced by a series of wildly implausible
slippery slope arguments. “If the government can force you to buy health insurance, then it can also force you to buy broccoli, or a cell phone, or gay pornography!” (Naturally, such proposals are likely to sail through Congress with little dissent.) An American public that lacks the ability or motivation to think critically appears to be buying into this fallacy.
I think
Slate's Dahlia Lithwick nailed it when she pointed out that, “This case isn't so much about freedom from government-mandated broccoli or gyms. It's about freedom from our obligations to one another. . . It's about freedom to ignore the injured, walk away from those in peril. . . It's about the freedom to be left alone.”
During Tuesday's oral argument, Solicitor General Donald Verilli argued that health care is different from other markets because we don't just let sick people die. “(G)etting health care service,” he said, “[is] a result of the social norms to which we have obligated ourselves so that people get health care.”
To which Justice Scalia replied, “Well, don't obligate yourself to that.”
