Health Law Dispute Hinges on Timing

Exclusive: After three days of oral arguments before the U.S. Supreme Court, most analysts agree that the five Republican justices are likely to deliver a body blow to Democratic President Obama by declaring his landmark health-reform law “unconstitutional.” But the key issue is really quite narrow, Sam Parry says.

By Sam Parry

So, the defining legal argument over health-care reform comes down to whether the federal government has the power to determine WHEN individuals will be charged for the health care services that they will, over the course of their lives, require.

After the Supreme Court’s oral arguments about the Affordable Care Act on Tuesday, that timing question appeared to be the single constitutional question left to answer, but it obviously was a big one because the Act would require people to sign up for insurance  and not wait for a medical emergency to get it.

U.S. Supreme Court Justice Clarence Thomas

Everyone in the courtroom seemed to agree that Congress has the authority to require Americans who are otherwise uninsured to buy insurance at the point of sale i.e. when they are in the emergency room and in need of medical care. That authority is clearly granted to Congress under the Commerce Clause of the Constitution you are transacting, therefore you can be regulated. (That appeared to be the consensus, though Justice Clarence Thomas, as usual, didn’t say anything, so it’s hard to guess what he’s thinking.)

In other words, this is not a question over whether you interpret the Commerce Clause as granting a broad or a more limited power to Congress. The issue is whether Congress has the authority to require that individuals buy insurance before they need the medical care that, everyone knows, they will require at some undetermined point in the future.

It’s a question of timing. It’s a “when” question, not an “if” question. Plain and simple. That’s because the health care market, unlike every other market, is:

–Universal: Virtually all of us will need medical care at various points in our lives;

–Unpredictable: We have no way of knowing when we’ll need medical care; and

–Expensive: The cost of providing medical care has skyrocketed to the point that most Americans simply can’t afford it without some form of insurance. And when Americans can’t pay for their own care, those costs get shifted directly to the rest of us who do have health care insurance.

So, when do we force Americans to pay for their health care? Is it before they get sick, or after they get sick? That’s the only significant question left for the Supreme Court to decide, pertaining to the individual mandate. But it may be the issue that the five Republican justices cite to gut the law and essentially send the country back to square one in the health-care debate.

Everything else including broccoli is an intellectual sideshow that serves to set the outer limits of the theoretical debate over boundaries of congressional authority. They are perhaps entertaining debates, but they are not germane to the Affordable Care Act, which makes no mention of broccoli and which hinges on the use of an individual mandate to rationalize a market that is, everyone agrees, badly malfunctioning. (Though, again, where not exactly sure where Justice Thomas stands on anything.)

Sam Parry is co-author of Neck Deep: The Disastrous Presidency of George W. Bush.


4 comments for “Health Law Dispute Hinges on Timing

  1. Jeanette
    March 30, 2012 at 21:34

    It’s all well and good for you to wax poetic about the charms of reforming health insurance. But the truth is for people like myself dealing with pre-existing conditions and no company provided health insurance, that this is the only hope at present. If this bill fails, I am done with insurance and I don’t consider that a good thing. It means if I get sick, I risk going untreated. But I’ve born the burden of paying for my individual insurance policy for 5 years & I’m saying enough is enough. If this is the kind of society we’re now becoming, so be it. I will let my insurance lapse because I can no longer go on paying 50% of my income to pay for a medical condition which costs 1/4 of that cost to treat. The individual mandate wasn’t perfect, but this bill was a real start… without it we are back to zero. It took us 30 years to get here. By the time a single payer system is on the horizon I could easily be dead.

  2. John Puma
    March 29, 2012 at 15:18

    The timing to look for is what the SCOTUS Inc. thinks will be the best moment to release its decision to best assist the GOP nominee in the campaign.

  3. calzone
    March 29, 2012 at 15:10

    Agreed — health care market is universal, unpredictable and expensive.

    But why is it so expensive? The main reason it is so expensive in the USA compared to other countries is because of the private insurance industry. The people who run these companies are obscenely wealthy and due to their amoral, avaricious worldviews, will never accept even a marginal decline in their net worths (say from 50 billion to 49 billion). And of course, a huge portion of the insurance companies’ expenses go to advertising, marketing and public relations, in order to compete with the other billion-dollar insurance companies.

    The problem is profit, and until the profit motive is eliminated from health care, it will always be expensive and out of reach for too many Americans. This is why we should all be hoping for the individual mandate to be struck down. As long as this law stands, it will only serve to further entrench this profit-driven private insurance approach to health care.

  4. Gordon Glick
    March 28, 2012 at 23:51

    Medical care, like the premise that we are allowed to exist, is a right granted by society to itself. I don’t give a whit about semantics or the niceties of the fascist interpretation of the Constitution as promulgated by the Roberts court. When the American people wake up to this, then alternatives will be formed, legal, illegal, or somewhere in between. It is typical of authoritarian states to assume that the people are helpless, and so subject to the vagaries of state dicta as paid for by corporate hegemons. Plenty of doctors, nurses and other health professionals are around who agree. Start setting up these alternatives locally, and get off the grid of the insurance scam. In other times, in other neighborhoods, this kind of business was called the “protection racket.” I’m sick of giving these bastards my milk money so I can get a bandaid for the knots they put on my head daily. Rise up.

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