The American Healthcare Debate: A Supreme Dilemma

By Ryan Kozin

The Debate: The Court and the Impending Decision

This past month the Supreme Court of the United States (SCOTUS) concluded deliberations on the constitutionality of Barak Obama’s signature healthcare legislation, The Patient Protection and Affordable Care Act (PPACA).  Following three days of congressional hearing which were held earlier in the month (April), 300-plus million Americans now anxiously await the court’s decision, which will be to the public announced this coming June.  And as the general political atmosphere continues to move towards that of a heated Presidential election, partisanship on the decision is seen and felt  nationwide.  Proponents of the law—signed into law on March 23, 2010—argue that it is a long overdue legislative accomplishment that addresses a discriminatory healthcare industry that leaves roughly 52 million Americans without coverage (figures according to the Commonwealth Fund); opponents argue that it is an invasion of personal freedom indicative of an out-of-control federal government moving dangerously fast towards socialism.

While Senator Obama successfully campaigned on a single-payer platform—a system in which one entity (a government run organization) would collect all health care fees, and pay out all health care costs—, what was ultimately passed in Washington D.C. two years ago (HR 3590) ended up looking more like a regulatory piece of legislation on the healthcare industry rather than a complete overhaul.  However, it is not without its merits.  And while liberal and progressive supporters of Obama might not be completely satisfied with the law—Physicians for a National Health Program, from whom we borrowed the Statue of Liberty image, still push for a single-payer system for instance—the truth is that it was a milestone democratic achievement.  Whether or not the law will stand, however, remains to be seen.

The Bill: A Contentious Birth

So what did the final bill look like exactly?  According to Peter J. Smith of the George Washington University School of Law, who summarized it succinctly in his paper Federalism, Lochner, And The Individual Mandate: “PPACA’s principal objective was to make insurance more readily available and affordable, regardless of the insured’s health condition”.  And, “it seeks to accomplish this goal by prohibiting insurers from denying coverage of pre-existing conditions and from denying eligibility based on health status, medical condition, or disability”.  Furthermore, by requiring that all individuals purchase health insurance or face a ‘tax’ (although legal arguments are currently being had over whether it’s a ‘tax’ or a ‘penalty’), the bill effectively increases the size of the pool of individuals paying into the system, therefore allowing for insurance companies to remain profitable while still covering individuals that have previously been denied coverage.  While this is not the single-payer system many progressive Democrats were hoping for, it seems like a successful middle-of-the-road solution in that it extends coverage through the pre-existing privatized apparatus.

However, while PPACA is an accomplishment in that it does extend coverage, a total of 28 states did not see the constitutionality of it.  And 26 of those 28 went on to file a joint action case against the Federal government (Florida v. United States Department of Health and Human Services) arguing that mandating the purchasing of insurance exceeds the authority of Congress to regulate interstate commerce and therefore does not fall within the scope of the powers granted to Congress under the Commerce Clause—remember that all legislation has to be pursuant to a provision, or provisions, of the United States Constitution.

The claims were upheld by Judge Roger Vinson in Florida v. United States Department of Health and Human Services (January 31st, 2011).  The hearing, unsurprisingly, was controversial in and of itself and would also go on to be challenged.  On August 12, 2011, a divided three-judge panel of the 11th Circuit Court of Appeals affirmed Judge Vinson’s decision in part, agreeing that the mandate was unconstitutional, but held that it could be severed, allowing the rest of the PPACA to remain. In response, the federal government declined to seek an en banc review by the Eleventh Circuit and instead petitioned for the U.S. Supreme Court to review the panel’s ruling and on November 14, 2011, the Supreme Court of the United States issued a writ of certiorari to the United States Appeals Court for the Eleventh Circuit to consider appeals to its rulings in National Federation of Independent Business v. Sebelius and Florida v. United States Department of Health and Human Services.

Legal Timeline of PPACA:

  •  March 23rd 2010, PPACA is signed into law
  •  March 23rd 2010, Florida along with 12 other states file a joint case against the United States Federal Government—an additional 14 states would eventually join the suit.
  • October 14, 2010, U.S. District Judge Roger Vinson ruled that the U.S. states could proceed with the lawsuit to overturn the new health care reform law.
  • January 31, 2011, Judge Vinson issued an opinion finding that the Individual Mandate was not severable and that the entire law must be overturned.
  • The Justice Department expressed its intention to file an appeal with the 11th Circuit Court of Appeals.
  • On August 12, 2011, a divided three-judge panel of the Eleventh Circuit Court of Appeals affirmed Judge Vinson’s decision in part: the court agreed that the mandate was unconstitutional, but held that it could be severed, allowing the rest of the PPACA to remain.
  • On September 26, 2011, it was reported that the Department of Justice would not ask for an en banc review by the 11th U.S. Circuit Court of Appeals.
  •  March 2012 SCOTUS holds hearings.
  • June 2012, a decision will be announced to the American public.

(Click here for an illustrated reminder of the US Court System.)                         

Constitutionality & Commerce: Inclusive v. Intrusive

So, where does PPACA stand?  Well, there are a total of four issues that SCOTUS is reviewing, which are as follows: The applicability of the Anti-Injunction Act, which prevents prohibits courts from striking down tax laws before the take effect; the constitutionality of the Individual Mandate; the Severability (of the Mandate)—or, in other words, can the bill be effective without that portion of the law—; and lastly, whether or not the expansion of Medicaid as presented in the bill violates the Constitution.

For our purposes here, though, we will limit our focus to the linchpin of the bill, the Individual Mandate.  And the exact question before SCOTUS on those grounds is whether or not the Federal Government has the constitutional power to require that all individuals purchase health insurance. And the constitutionality effectively boils down to the applicability of the Commerce Clause, defined in Article 1, Section 8, Clause 3;[2] of the Constitution as such:

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.

Predictions have so far been split over whether or not the Supreme Court will determine that the individual mandate falls within the scope of the clause.  However, giving a speech two weeks ago at a White House Press Meeting, President Obama—himself a former professor of Constitutional Law—stated that he was ‘confident’ that the SCOTUS would uphold the law:

I’m confident that this will be upheld because it should be upheld. That’s not just my opinion; that’s the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they’re not particularly sympathetic to this particular piece of legislation or my presidency.”

Besides highlighting that the Congress that passed the legislation is democratically elected whereas Supreme Court Jurors are appointed for life—which would therefore, he argued, make such an overturn nothing more than “Judicial Activism,” which is slight erroneous as the court does have the power of “Judicial Review [of law]”—, Obama meant that overturning a major piece of legislation drafted by a democratically elected Congress would be an unusual act of the court.  But, let’s go even further.  Just how far does the Commerce Clause extend?  And is there precedence one way or another with regard to application of the Commerce Clause to such a piece of legislation?

To understand if the mandate falls within the bounds of the Commerce Clause when need to understand the arguments being made.  And as summarized very well by Professor Sheldon Nahmod at the IIT Chicago-Kent College of Law, both sides are effectively as follow:

The argument here [i.e., against the mandate] is that this is not your usual commerce clause case.  This is a case in which what’s being regulated is not doing something, but failing to do something—failing to buy healthcare insurance.  And the argument is that, among other things, that this is not an economic activity that subject to congressional regulation under the commerce power and the related argument is that if it were, what could congressional not force us to do in terms of buying things? […] The [counter] argument is that the decision not to purchase health insurance is effectively an economic decision […] And it’s part and partial of a overall healthcare and healthcare insurance scheme which effects millions of people over state lines.  So, the decision not to buy health care insurance in a situation where everybody at some point with or without insurance are going to need insurance means that people without healthcare insurance are costing people money that the rest of us who have healthcare insurance are paying for and the argument is that is not fair and not economically efficient.” 

So, your “localized decision” not to purchase healthcare insurance—when you are in fact inevitably going to end up needing healthcare—is actually not a solely “localized decision” at all.  Because of how intertwined the healthcare insurance industry is, it affects me even though I may live 5 states over.  In short, it affects interstate commerce.  And is there precedent?  Has the Supreme Court ever before consider a case involving what might have been described as “local activity” and found that the Commerce Clause gave it the right to regulate?   The answer is yes.  Professor Nahmod continued:

“There was a case in the early 1940’s involving a farmer’s decision to grow wheat for home consumption and the Supreme Court held that Congress under the Commerce Clause could regulate that.  And more recently, in the Raich Case coming out of California, the medical marijuana case, the Supreme Court also held that that could be regulated by Congress in order to continue to effectively regulating the interstate shipment and treatment of drugs that were prohibited—part of a complex regulatory scheme.”

Ultimately, the Individual Mandate does fall within the scope of the Commerce Clause.  As James F. Blumstein, University Professor of Constitutional Law and Health Law & Policy at Vanderbilt Law School, put it when interviewed by the New York Times recently: “For the states to succeed in having the law declared unconstitutional, the Supreme Court would have to modify significantly existing analysis and doctrine surrounding the Commerce Clause,” speaking to the fact that US government has been using the clause increasingly since 1937 to carry out necessary laws much like PPACA.

The argument surrounding the applicability of the Commerce Clause to PPACA’s Individual Mandate comes down to whether not purchasing healthcare insurance is a form of economic activity as Congress only has the power to regulate economic activity—they do not have the right to regulate economic inactivity. At its core, it’s a seemingly ridiculous question: Is the decision not to take economic action itself a form of economic activity?  So, while no one is arguing that Congress does not have the right to regulate the insurance industry under the Commerce Clause, the plaintiffs maintain that requiring individuals to “engage in commercial transactions they would otherwise have avoided,” and, therefore, the mandate by definition regulates inactivity.  But as argued acutely in response:

“As the government and others have argued, a decision not to purchase or maintain insurance can just as easily be conceptualized as a form of activity—in essence, a decision to self-insure or to plan to seek health care without any means to pay for it (and thus often at public expense).  Decisions about how to fund eventual healthcare expenses – whether by purchasing private insurance, securing a job that provides health insurance, planning to take advantage of government-provided health care, or planning to rely on the financial assistance of family members – are economic decisions that, in the aggregate, have a substantial effect on interstate commerce.”

In the end, when you consider that, according to Roll Call, the average family, including Members of Congress, is already paying $922 more each year in health insurance premiums to cover the cost of treating the uninsured, it becomes nearly indisputable that the decision not to purchase healthcare insurance does affect both intrastate and interstate commerce and is therefore a form of ‘economic activity’.  While it might not be direct ‘economic activity,’ it is an active economic decision.  And, when you couple that with the fact that Congress has long compelled individuals to take action that they might not otherwise take—under Article I to compel citizens to register for the draft, and no one seriously contends that Congress lacks authority to require individuals to report for jury duty or to respond to the census—, it becomes quite difficult to argue that the individual mandate is unconstitutional as pursuant to the Commerce Clause.

Furthermore, as this case makes its way to the Supreme Court it is important to keep in mind that it is the only of its kind that has made it out of the appellate court, which is good news for the Obama administration.  Three federal appellate courts in Washington, in Richmond, Va., and in Cincinnati, rejected substantive challenges to the healthcare law.  The most important of which—Seven-Sky v. Holder—took place in the U.S. Court of Appeals for the District of Columbia.  And not only was the mandate found to be constitutional, but leading conservative intellectual Judge Laurence H.  Silberman stated:

“The right to be free from federal regulation is not absolute and yields to the imperative that Congress be free to forge national solutions to national problems.”

Lastly, and as recently highlighted very well in an article by Einer Elhauge in The New Republic, mandates are nothing new.  In fact, even there are numerous examples of when the Founding Fathers imposed insurance mandates—including George Washington himself.  Einer points out three unknown historical insurance mandates:

  • In 1790, the very first Congress—20 of them framers—passed a law including a mandate requiring that ship owners buy medical insurance for their seamen. This law was signed by President George Washington.
  • In 1792, a Congress with 17 framers passed another statute that required all able-bodied men to buy firearms.
  • In 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays and enacted an individual mandate requiring seamen to buy hospital insurance.  The law was signed by John Adams.

Haunting Historic Parallel: Contention for the Commerce Clause

In addition to the case for the constitutionality of the mandate under the Commerce Clause there exists a haunting parallel, which deserves reflection.  According to Professor Peter J. Smith’s aforementioned paper (Federalism, Lochner, And The Individual Mandate), in 1964 the Attorney General of the Commonwealth of Virginia filed an amicus brief in Heart of Atlanta Motel v. United States urging the court to invalidate the Civil Rights Act of 1964.  The note read “Can anyone seriously maintain that our forefathers deemed it to be part of ‘liberty’ that the Congress of the United States could dictate to them those persons whom they must serve in their private business establishments? The brief then cited the Ninth Amendment’s reminder, saying ‘enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people’ and went on to argue that ‘since the day of its ratification, one of those rights has been the right to discriminate in private business establishments.’  Lastly, the brief asked, ‘How can it now be asserted that the Commerce Clause, which was already a part of the Constitution, has somehow destroyed that right?’

  As Smith closes out his paper by saying, there is an eerie echo of these arguments in the lawsuit filed by the current Attorney General of Virginia to challenge the constitutionality of the PPACA in general and specifically the mandate under the commerce clause.  And while we don’t necessary have to assume that the current challenges before the court are tainted by the same invidious desire to defend a shameful practice, it is hard to argue that they are not similarly flawed arguments in what they advance—namely, that any expansive application of law by the Federal Government is unconstitutional.  In short, there seem to be larger geopolitical motivates driving the fierce rallying cry against ‘Obamacare’.

Historical Context: Ideas in Health Care Reform from Roosevelt to Obama

Despite the right’s belligerent reaction to PPACA, the majority of Obama’s policies are moderate when placed in a historical context.  Nevertheless, the Republican Party has found it advantageous to paint him as a careless tax-and-spend socialist. Even Mitt Romney, the architect of the Massachusetts plan  (i.e., An Act Providing Access to Affordable, Quality, Accountable Health Care) and a relative moderate in the republican field, has been running on the platform that his first order of business as president would be to repeal Obamacare and then require states to draw up their own health care legislation—he has not, however, elaborated on how he would make sure that all state laws would coordinate in accordance with each other in order not to further complicate an already byzantine healthcare insurance industry.  But the truth is that the PPACA is shocking similar to healthcare policies drafted, designed and discussed by both Republican and Democrat US Presidents throughout history.  In fact, the whole idea of instituting an individual mandate was a Republican idea that came about by the conservative think tank the Heritage Foundation (the 1989 report is available to right) as an alternative the Single Payer System typically favored by progressives.  And as mentioned by Josh Gerstein of Politico, the individual mandate was the leading alternative favored by conservatives such as Gingrich when President Clinton was pushing universal during his administration’s first term.

So, just how centrist is Obamacare?  Here is a bullet-pointed list of previous attempts at healthcare reform made by Presidents of both parties (based off of a recent piece in the New York Times that you can access here):

  • 1912, Theodore Roosevelt was the first President to touch the issue, promising national health insurance and women’s suffrage during his campaign for the Progressive Party.
  • 1934, Harry Truman was unable to touch healthcare due to pressures felt by powerful lobbies such as the American Medical Assocation (AMA) despite his intentions.
  •  1945, coming off the WWII, President Harry Truman called on Congress for a health care overhaul.  He proposed compulsory coverage, increased hospital construction, and a doubling of doctors and nurses nationwide.  However, echoing 1934 as well as the current political climate, the AMA and other critics cried of “socialized medicine” and the plan never made it out of Congress.  And although he would attempt to get legislation passed again in 1948, the Korean War thwarted any would-be successes.
  • The next president to push for health care reform was John F. Kennedy whom tried to push his Medical Aid Bill, which was ultimately stalled due to powerful lobbying by the medical industry.
  • 1965, along with a Democratically-led Congress and labor unions, Lydon B. Johnson created the Medicare and Medicaid programs, which provide comprehensive health care coverage for people 65 and older as well as the poor, blind and disabled.  This is widely considered to be the most important piece of healthcare reform legislation.
  • 1971, with health cost being to increase sharply, mainly due increases in the cost of hospital care, health costs become a major political issue and Republican President Richard M. Nixon supports a proposal requiring employers to provide a minimum level of insurance to employers while Senator Edward M. Kennedy (Democrat) proposed the “Health Security Act,” which was a single-payer health reform plan.
  • 1973 President Nixon signs the Health Maintenance Organization Act of 1973, which established H.M.Os as we know them today.
  • 1976, following Edward M. Kennedy’s lead on the issue was President Jimmy Carter, who campaigned on the need for “a comprehensive national health insurance system with universal and mandatory coverage”.  However, the recession that followed his election took precedent over any such legislation.
  • 1988, Republican President Reagan signed into law the Medicare Catastrophic Coverage Act, created to protect older Americans from financial ruin because of illness.  Benefits included setting ceilings on Medicare patient’s payments for hospitals, doctors and prescription drugs.  (However, the Catastrophic Coverage Act was repealed as hundreds of thousands of more affluent older Americans objected to paying the surtax that would be used to fund the program.)
  • 1993, President Bill Clinton looks to provide universal coverage by managing competition.  In short, he wanted to keep the industry privatized but implement stronger regulation.  But yet again, Clinton’s efforts died due to strong industry lobbying and partisan politics.   However, only four years later Clinton had some success with the creation of the State Children’s Health Insurance Program (S-Chip), which would bring coverage to more than 7 million children by 2008.

Placed in this context, Obama’s legislation sharply mirrors the more centrist plans proposed over the past 100 years.  And in more recent memory, it is almost identical to the legislation Republican presidential candidate Mitt Romney signed into law in Massachusetts—simply expanded.  According to Johnathan Gruber, a key intellectual architect to both Romney’s healthcare law as well as Obama’s law in addition to being a professor of Economics at MIT:

“[…] they’re the same fucking bill. He [Romney] just can’t have his cake and eat it too. Basically, you know, it’s the same bill. He can try to draw distinctions and stuff, but he’s just lying. The only big difference is he didn’t have to pay for his. Because the federal government paid for it. Where at the federal level, we have to pay for it, so we have to raise taxes.”

He goes on to say:

“Basically, this is the last hope for a free-market solution for covering the uninsured. If this fails, then you either give up on the uninsured or you go to single-payer. Those are the only two options left. And the Republicans, if they’re willing to stand up and say, ‘We give up on the uninsured,’ then great, let them say that and let the voters come to the polls and decide, but they won’t say that.”

Ultimately, when you contextualize the Patient Protection Affordable Care Act, it becomes clear that it is not an over-reaching socialist policy but rather a moderate free-market solution that brings coverage to millions of Americans that will otherwise be left without coverage.  It’s actually quite surprising that such a bill would be signed by a Democrat President—while PPACA does force insurance carriers to provide insurance to customers regardless of ‘health status, disability or medical condition’ and is therefore seen as an accomplishment, it makes that possible by expanding the pool of individuals in the market, thereby ensuring the success of the free-market.  The individual mandate helps to ensure a large market for private insurance carriers and helps insulate them for the costs they would assume if they were simply required to cover all those who wanted care without the guarantee of an overall larger patient pool.  And so the question remains—what will happen if the Supreme Court ends up being activist rather than judicious and repeals the legislation?

Potential Political and National Consequences: Uninsured and Unmarketable

If either the individual mandate or ‘Obamacare’ in its entirety is repealed, there will be immediate consequences.  Not only would a repeal damage Obama’s re-election bid as it would be very difficult to rebound from such a large piece of ‘unconstitutional’ legislation, but as parts of the law have already been implemented, it would mean taking coverage away from Americans—including children—who just recently were awarded it for the first time.  Plus, there are substantial deficit costs associated with PPACA.  According to the Congressional Budget Office (CBO), repealing the national health care law would reduce net spending by $540 billion in the ten year period from 2012 through 2021—that number represents the cost of the new provisions, minus Medicare cuts. Plus, repealing the bill would also eliminate $770 billion in taxes. It’s the tax hikes in the health care law (along with the Medicare cuts) which accounts for the $230 billion in deficit reduction.  Here is a list of what else will happen if either all or part of PPACA is repealed.

            More specifically, if the Individual Mandate is repealed:

  • The most disastrous consequence of repealing the mandate but allowing the rest of the bill to stand would be the collapse of the insurance industry.  As stated by Avik Roy or Forbes Magazine: “it would totally destabilize the private insurance market. The Obamacare individual mandate is relatively weak, as mandates go; but repealing it, while maintaining the law’s requirements that insurers take all comers regardless of age or health, will drive insurers out of business, in what economists call the ‘adverse selection death spiral.’”
  • Repealing the mandate will deprive the Supreme Court of the opportunity to rule on the constitutionality of the provision, and on the entirety of the Affordable Care Act [ACA]. While the Supremes may decide to uphold the mandate, it is also possible that they will use the opportunity to rule on the mandate to finally install some constraints on Congress’s exploitation of the Commerce Clause. This has significant long-term implications for the cause of limited government and would amount to ‘Judicial Activism’.
  • According to FierceHealthcare (Daily News for Healthcare Executives), Hospital executives, including the American Hospital Association (AHA), are worried that if the Supreme Court strikes down the individual mandate, their organizations’ finances will be hurt if not destroyed, especially if other provisions under the healthcare law that cut reimbursements remain intact. As hospitals across the country have been pumping capital into their resources, preparing for the millions of anticipated patients to come through provider doors—providers were counting on the estimated 30 million newly insured in 2014 that would affect patient volume and offset the Medicare and Medicaid cuts—, where will they make up the cost of those expenditures if the patient pool is not longer poised to increase?
  • According to Moody’s Investors: “Bad debt, which averages 10 percent of revenues at for-profit hospitals, will expand. Uninsured individuals enter the healthcare system through the emergency room and often wind up being admitted to the hospital and amassing bills they may not have the means to pay.”
  • Lastly, if the individual mandate is repealed, insurers will increase their rates.   To pay for care of the sick, insurers need premiums from the young and healthy people who would be required by the mandate to maintain coverage. But if the mandate is repealed, they’ll have to find a different way to make up those costs. If they try to do it by raising premiums, deductibles, or other customer expenses, healthy customers with less need of coverage would be driven away, forcing them to raise premiums again.

And if PPACA is struck down in its entirety (According to various sources including the White House and the Congressional Budget Office):

  • 2.5 Million More Uninsured Young Adults. 2.5 million young adults who have been able to stay on their parent’s health insurance thanks to health reform will be without it.
  • 2.65 Million Seniors Would Pay $1.5 Billion More for Prescription Drugs. The Affordable Care Act provides a 50 percent discount on covered brand name prescription drugs for seniors and people with disabilities who hit the donut hole. This discount has saved 2.65 million seniors more than $1.5 billion through October 2011. The discount will increase until the gap is eliminated in 2020.
  • 45,000 Americans with Pre-Existing Conditions Would Become Uninsured. As of November 2011, the Affordable Care Act’s Pre-Existing Condition Insurance Plan has provided insurance to 45,000 Americans who have been locked out of the insurance marketplace because of a pre-existing condition.
  • Insurance Companies Would Be Free to Cap Care for 102 Million Americans. Under the Affordable Care Act, insurance companies cannot drop your care when you get sick, or place a lifetime limit on your care. Today, the 102 million Americans whose health plan included lifetime dollar limits have seen their coverage expanded.
  • Insurance Companies Would Be Free to Drop Coverage for up to 15 Million Americans. The Affordable Care Act finally put an end to one of the most abusive practices of the insurance industry: retroactively canceling coverage for a sick patient based on an unintentional mistake in their paperwork. Before the health care law was signed, most of the 15 million people purchasing coverage in the individual market were vulnerable to this policy.

Closing Arguments: Liberty’s Lineation

In closing, the political climate in the United States is volatile, and partisanship makes for very difficult policy-making.  Few, if any, would debate that.  And while it is also true that this volatility has also been compounded by a prolonged economic recovery, there are larger influences at play.  The Republican Party has enthusiastically embraced a paradigm shift to the hard right over the past 20 years,  driving the framework that holds  to the right of what we might call the “historical right”.

 And while the election of Barack Obama in 2008 seemingly speaks to the contrary, the larger trend speaks louder.  Take the Supreme Court jurors, for example.  The current Supreme Court is arguably the most conservative in modern history.  As pointed out by American statistician, psephologist, and writer Nate Silver in the New York Times piece, “one statistical method for analyzing the Supreme Court, in fact, already finds that the current court is the most conservative since at least the 1930s”.
Mr. Silver goes to summarize a methodology known as the “Martin-Quinn Scores,” which are used to measure the relative location of SCOTUS justices on an ideological continuum to better understand the politics of the high court.  And it achieves this by giving justices a score on a one-dimensional scale that runs from liberal to conservative, with negative values representing liberal justices and positive values representing conservative ones; the scores for individual justices can change over time if their voting behavior changes.  The included graph nevertheless clearly profiles the ideological tendencies of the court by representing the most liberal justice at any given time by the leftmost line on the chart and the most conservative justice by the rightmost one followed by additional lines to represent the second, third and fourth most liberal justices, and so forth.  The thick black line in the center of the chart, however, is the important one.  And while Silver does mention that the method should be approached with ‘some caution’ as it does not take into account the subject matter the justices are voting on, the graph clearly demonstrates that the current court has veered further right than any court in the last 80-plus years.

Of the 9 justices that comprise the court, 2 were appointed under George W. Bush (Alito and Roberts), 2 under Reagan (Kennedy and Scalia), and one under George H.W. Bush (Clarence Thomas)—the remaining 4 (Breyer and Ginsberg; Kagan and Sotomayor) were appointed under Clinton and Obama respectively.  Likewise, so far it looks as though the decision is going to come down to a 4 – 5 split, one way or another.  And most legal scholars are naming Justice Anthony Kennedy as the will-be deciding vote.  However, as recently argued by Lawerence Lessig—Director of the Edmond J. Safra Foundation Center for Ethics at Harvard University as well as a Professor of Law at Harvard law School—maybe we will all find ourselves surprised by justice Scalia’s ultimate decision as he is considered to have the leading jurisprudence on the commerce clause.  According to Lessig:

“Scalia’s commerce clause jurisprudence is among the most careful, and, in my view, precise among the justices likely to impose a constitutional limit on Congress’ authority. His concurring opinion in Gonzales v. Raich, a case about whether Congress had the power to regulate home-grown marijuana, maps a very clear formula for testing Congress’s authority. If you apply that test to Obamacare—especially in light of the evidence just published by my colleague Einer Elhauge—there can be little doubt about the answer.”

Nevertheless, Lessig goes on to express doubt suggesting that the debate is purely political.  In the end it is a conservative court feeling pressure from a conservative republican party so obstructionist that they are constantly seeking new extremes in their conservativism—and also a court that is no as unpopular as the conservative controlled congress that has been lobbying it .

In the end it comes down to whether or not you believe health is a deservedly liberty or a product to be controlled by whimsical hand of the free market.  And if you believe in the latter, then you have to decide how to make it available—through a free-market solution like the one at hand, or through a centralized, single-payer system.  In any event, there are tens of millions of Americans that can’t get the coverage they need.  While PPACA is not a perfect piece of legislation, it is a long-overdue step in the right direction.  Instead of campaigning on ‘Nobama,’—trying to repeal every policy he has implemented without necessarily having an alternative, much like Romney has done with regards to healthcare reform—maybe Republican efforts would be better served amending the law or even embracing more centrist ideas that they embraced in the past.  After all, it might be refreshing if conservative lawmakers and politicians alike were able to be patriotic on issues differing from ultra free-marketism and militarism for a change.

The more probable outcome is that Scalia, along with Alito, Roberts and Thomas, votes against it leaving Kennedy as the true determining vote (no relation to the Kennedy political family that had long trumped healthcare reform).  And I personally fear that the politics of the day will ultimately prove more powerful than jurisprudence under precedence.  We need the court to be judicial, not judicious; maybe the Supreme Court is now going to take it upon itself to regulate Congress’ economic authority—something that they haven’t done in modern history.  Either way, in the end it all comes down to constitutionality of the Commerce Clause (which I believe we have proven) and one remaining question: Can a country truly claim to have the best healthcare on earth if it’s not legally available to the entirety of its citizenry?


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