Day 2 Preview: The Big Day

Today is the day the Supreme Court will hear oral argument on the individual mandate (called the minimum coverage provision if you happen to be listening to the argument). As uneventful as yesterday's argument on the Anti-Injunction Act was, today most definitely will be eventful. Every word out of a Justice's mouth, every smile and every frown, will be dissected by legal scholars trying to predict where the Justices are leaning. I've been involved in and kept an eye on enough Supreme Court decisions to know that there's little to be told just from the questions they ask. But we'll all try anyway.

As you will recall, the states challenged the individual mandate on the ground that, under Congress's commerce power, the federal government can't force anybody to buy anything. The throw-away line -- if the government can do this, then they can force you to eat broccoli. Well, the failure of people to eat broccoli doesn't cost the taxpayers $43 billion per year in health care expenses when people without insurance get care that they can't pay for. The states say you can't force someone to act; you can only force them to stop acting (inaction vs. action). But there's no inaction here -- everybody gets health care; this is just a question of how they will pay for it.

Is forcing people to buy health insurance a valid exercise of Congress's commerce power? Well, in Wickard vs. Filburn, the court said the feds could regulate wheat a farmer grew for his own consumption because the farmer would eat his own wheat rather than buying wheat on the open (interstate) market. In Gonzalez v. Raich, the Court (including Justice Scalia) said the federal government can regulate the growth of marijuana in someone's home for that person's own use because of the strong federal interest in stopping the flow of illegal drugs. Health care certainly is more commercial than either of these two things, it seems to me.

In my view, the government's best argument is that it had to do something about the 50 million people in America without insurance. This is a complex regulatory scheme of which the individual mandate is only a small part. There's no question that the federal government can regulate health care -- HIPAA, COBRA, ERISA, for example. The experiences of states like New York and New Jersey tell us that, if you force insurers to cover people with pre-existing conditions without an individual mandate, premiums skyrocket, healthy people leave the system, and premiums go up even more. So to cover the uninsured with pre-existing conditions, it was "necessary and proper" for Congress to enact the individual mandate (under the Necessary and Proper Clause). The government has stressed this argument in its briefs; I expect this to be its main emphasis in oral argument -- and, I believe, rightly so.

The government also argues that the penalty for failing to buy insurance is a tax -- not the kind of tax that's subject to the Anti-Injunction Act (yesterday's argument), but a tax in the broad Constitutional sense of the word -- a levy on citizens. So then it would come under Congress's taxing power. I think this is a throw-away argument.

For the Court, this case involves an analysis of precedent. But underlying today's argument is the larger discussion of what kind of society we are. Do we just let the markets do whatever they will, or do we as a society make an effort to ensure that everybody has access to comprehensive, affordable health insurance? Since my life is dedicated to helping people with chronic illnesses -- indeed, since I have chronic illnesses myself -- I want us to do the right thing and make insurers cover people with pre-existing conditions. If the price we pay for that is an individual mandate, all the better -- let's stop people from being irresponsible and not having insurance when they get acutely ill, end up in the emergency room, and can't pay their bills, leaving the taxpayers to clean up their mess when they file bankruptcy. Indeed, one of the original plaintiff's in the case challenging the health reform law did just that - got sick, couldn't pay her bills, filed bankruptcy, leaving the taxpayers to foot the bill for her health care. The people who are screaming that they don't want to be forced to buy insurance -- even with subsidies to make it more affordable -- how do they plan to make sure the rest of us aren't forced to pay their health care bills when (not if) they get sick?

Anyway, here's the NY Times's summary of today's argument. The battle of the law professors is here. And in case you don't know this already, the individual mandate was a Republican idea. They only decided to hate it when they decided to hate President Obama. Actually, only 2 percent of Americans would be subject to the mandate's penalty; most will continue to be covered by their employer, and others will get subsidies to help them pay for insurance.

What happens if the Court strikes down the individual mandate? Many people want the law to require that everybody can buy insurance, even if they have pre-existing conditions, but they don't like the individual mandate. But the general consensus is that you can't have one without the other. Indeed, the Obama administration has asked the Court to strike down the requirement that insurers can't exclude people with pre-existing conditions if the Court strikes down the individual mandate. But others are looking for alternative solutions. Some states are already working on a plan B. After all, we know from Massachusetts not only that states can enact an individual mandate, but that it works. And then there's the somewhat perverse politics of the whole thing, where a win for the health law is a loss for President Obama because it could energize the GOP base.

For me, this is all about people with chronic illnesses who can't get insurance due to pre-existing conditions. The Court MUST uphold the individual mandate if that is going to happen. Later today, I'll give you a report on how the argument went. In the meantime, I just have to remember to breathe! Jennifer