In the Supreme Court hearings on Tuesday, the Solicitor General struggled to explain why health care is different -- to articulate the "limiting principle" that the Court's conservatives were demanding. So, I thought I'd take a whack at it.
The health care market isn't just something we participate in or will participate in, depending on how it is characterized. Health care isn't something you will need sometime. It's the one thing you might need at any time. Health care is the one thing individuals may need wherever they go, for however briefly or however long they may be there. If ever there was something that called out for national regulation, it is health care.
Of course, the conservatives on the Court kept coming back to the idea that the ACA doesn't really regulate health care. Rather, it regulates health insurance. That's putting too fine a point on it. In making this argument, the justices are either being disingenuous or revealing amazing ignorance.
As the American health care system has evolved since Richard Nixon invented HMOs, there is no separation for most Americans. Our health insurance determines what sort of health care we receive -- who may provide it and what services we will be allowed. Insurer decide for us which doctors' services they will cover, and they decide which tests and/or procedures they will authorize. In many cases, that authorization is prerequisite to getting the care sought. Even when it's not, the cost of those services would be prohibitively costly for almost every American.
In my opening, I wrote that if "ever there was something that called out for national regulation, it is health care." That's wrong. In truth, if ever there was something that called out for national regulation, it is health insurance.
Because most Americans depend on their health coverage, it is a sine qua non for interstate commerce. Without it -- if the state regulation of insurance companies meant that we would only be covered in our home state, a lot of Americans could choose not to risk leaving that state. It is something we depend on having wherever we might find ourselves within the United States. Otherwise, you'd find Americans purchasing special health insurance for travel out-of-state, as many do now when they travel outside the USA. It makes all the sense in the world for Congress to make rules regarding health insurance.
Whether it's done as a single payer system, or provided through private coverage, there is no form of commerce that cries out more for a national scheme than the way we provide coverage for health care. For all the economic reasons the Solicitor General and the liberal justices were claiming, the market will not function as the ACA envisions, without a mechanism to bring all (or nearly all) Americans into the scheme, so that the costs can be shared by those who can afford them.
The conservatives seriously misapprehend the way the system currently operates if they think the problem of non-coverage can be solved by having people pay for insurance when they come to the hospital emergency room. Obviously, this is an idiotic idea -- not least because many people who wind up in the emergency room are in no condition to purchase anything. Even if they did, the law would probably find contracts unenforceable because of the legal defense of duress. Either these justices have forgotten their first-year law school coursework, or they are being obtuse, or they are being disingenuous -- or some combination of these.
Moreover, this line of reasoning misapprehends the real cost problem. The conservative justices kept referring to emergency care as the real issue. It isn't just those who wind up in the emergency room needing emergency care. The biggest cost problem is actually all the uninsured who use emergency rooms as their primary care. They can't be asked to purchase costly health insurance at that time, because they cannot afford to buy it. That's why they go to the emergency room in the first place -- because they will be seen...eventually...and the hospitals will eventually eat the costs in providing those services, or the states will cover them through Medicaid or similar program designed to ensure the poor get some modicum of health care.
More than anything, though, having health insurance doesn't just mean that emergency care will be covered. It means that people can afford to see doctors for early diagnosis and even preventive care, which is far less costly than the alternative -- treatments for expensive, often chronic or terminal conditions.
The other red herring is that this would allow the government to insist Americans by broccoli. Guess what? The government already does. Food stamps are limited to a fairly narrow range of products that are meant to promote healthier consumption.
If the government can't require individuals to purchase their own coverage, could it force parents at least to cover their children? Parents are already required to get inoculations for their kids. Food stamps are given to parents to provide food for their children. Why not insurance? And, if we can require coverage for kids, why not for the parents, or for everyone? Massachusetts already has a law requiring its residents to purchase insurance. Other states are lining up similar plans, or even single-payer plans. Congress won't be creating this market/commerce. It will merely be regulating it by requiring universal participation on a national level. That's what the intestate commerce power was created to do -- to provide rules of general applicability to avoid the problems caused by different rules in different states.
The Congress already provides considerable regulation of the insurance industry, and the ACA carries many new regulations. The question, of course, for the conservatives, is whether the Constitution permits the Congress to enact a law requiring Americans to have some health coverage, even if they have to purchase it individually. They wanted the Solicitor General to articulate a limiting principle. It's really simple. Health care is unique. It really is. For a host of reasons.
There is not only a rational basis for the law -- the standard of review for Commerce Clause cases -- it would be irrational to continue without finding a mechanism to provide universal coverage. No one is being forced to by anything, much less but a particular product. The exchange will work to provide choices. And, of course, people can choose to face the tax penalty instead.
Personally, I'm kinda rooting for the conservatives to strike down the mandate. I'd like to see the Congress come back with a fix, which should at least involve a single-payer option for those who do not want to pay for private insurance. Also, this would keep the law from being an electoral issue, so Republicans could not rally the voters to seek repeal by voting for Republicans in November.
However, if the conservatives are looking for a rational basis to up hold the mandate and for a limiting principle, it is this: Health care is unique. So long as we rely on private insurance to cover a large plurality of Americans, and if the Congress is going to force insurers to cover high-risk/high cost patients, the Congress is within its power to require Americans to have some coverage, even if they have to buy it. It's in the Constitution:
In order to...promote the general welfare...(we, the People) do ordain and establish this Constitution for the United States of America