The more minor section of the case is the idea that the federal government is effectively forcing states to expand their Medicaid coverage as part of the law. If they do not, they will be denied Federal grants to help pay for the program. This, people say, is unconstitutional. But we see this all the time. States won't get highway funding if they choose to lower their drinking age. States won't get college funding if they discriminate against women. This is common practice, and has been for decades. As such, this part of the case effectively falls to pieces right from the get-go.
The crux of the court case, however, surrounds the individual mandate--whether the federal government can make you buy health insurance. This, the law's opponents say, is unconstitutional. Defenders of the law say that the Constitution's Commerce Clause and Necessary and Proper Clause allow the mandate. As you've all no doubt heard me say before, Obamacare, and indeed nearly any form of working universal health care that's seen throughout the world involves coercion. Medicare effectively forces people to purchase health care, and yet no one questions its constitutionality. Social Security likewise forces people to effectively pay for old-age pensions whether they want to or not, and yet it was ruled constitutional by the Supreme Court. Obamacare pretty much would do the same thing as an expansion of Medicare. In some form or another, everyone would be required to purchase insurance through taxes. Instead, everyone has to buy private insurance, get subsidies if they can't afford it, and has to pay for it with a tax if they don't buy insurance, so that the cost of their hospital visits wont be pushed off onto someone else. Obamacare, as Paul Krugman says, "is just a klutzy form of single-payer (i.e. Medicare)." So what's the big deal?
Well, in the oral debates, the main point that was often brought up is, "if the government can use the Commerce Clause to justify requiring you to purchase insurance, what can't it require you to purchase against your will?" In other words, every sort of activity can be justified as having an effect on interstate commerce. The Obama Administration's justification for this mandate (and, admittedly, Mitt Romney's when he passed Romneycare), was that everyone uses health care at some point in their lives, and the absence of universal coverage creates costs that get imposed on those who do buy insurance by those who cannot or refuse to. Since Congress has the authority to regulate insurance, the act of not buying insurance affects something Congress can regulate (insurance) and is as such subject to regulation. If you get right down to it, there really isn't anything stopping the government from using the Commerce Clause in such a way. Well, except the small matter of our political process. If you don't want such laws enacted, then don't vote for people who advocate them. The fact is, the ACA was enacted just like every other law was. King Obama didn't decree it the supreme law of the land. It was put to a vote in Congress, and it passed.
Justices Alito and Scalia quickly countered this argument by saying that by this logic, anything generates costs on other people: "If I don't buy a Volt, I raise the price of Volts." They went on to ask what would stop the government from mandating all manner of other activities--like making people Buy broccoli or purchase burial insurance. And so it went, on and on, with product after product being thrown out there. Well, there's a key difference that makes health insurance and health care as a whole quite different from these other examples. When someone doesn't buy a Chevrolet Volt, it doesn't create the problem of free-loading like insurance does. If a person doesn't buy insurance and gets hit by a bus, their $20,000 medical bill is paid for by people with insurance. If, say, Bob doesn't want to buy a Volt, it isn't as if Hakim, who did buy a Volt will end up paying for Bob to have a Volt if he later decides he needs one but can't afford it. With health insurance, however, the case is quite different, as I've explained. As far as burial insurance goes, that isn't a major social problem, it imposes very small, one-time costs on people, whereas health care in the ER is potentially an open-ended and very expensive cost.
The questions posed by Alito and Scalia are particularly troubling to me because they don't seem to understand why health care is such a difficult and special problem to address. If this law gets overturned, 30 million fewer people won't get access to health insurance, people with insurance will continue to foot the bill for those who do not, premium costs will rise, rather than fall, and our federal deficit will increase.
To those who make the argument that this is about freedom and liberty, I make this next point. John Stuart Mill provides the traditional definition of freedom as being, "Over himself, over his body and mind, the individual is sovereign." However, he also says, "That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." So, by the classical definition of freedom and liberty, the Affordable Care Act serves to preserve and enhance liberty, in that it prevents those who choose to not purchase insurance from imposing costs on those who do. A person is free to do as he or she pleases, so long as their actions do not effect others adversely. I don't think a stronger argument could be made for this law on the grounds of individual freedom.
Speaking of the law's opponents, what would be put in the law's place by the current GOP candidates? Well, Rick Santorum hasn't said a thing, which leads me to believe he has no plan. Ron Paul doesn't want universal health care and has never advocated it to my knowledge. Newt Gingrich used to be for mandated health coverage but now is not; who knows what his current idea is, maybe hospitals using the light of the moon to cut electricity costs? The only candidate who has presented any semblance of a plan is Mitt Romney, the very man who signed into law the template for Obamacare. His plan is to give individuals tax breaks with which to purchase insurance and to allow them to purchase it across state lines to find the best deal. This sounds an awful lot like what Obamacare does. Moreover, he wants to provide states waivers from complying with the law in order to allow them to form their own health care plans. You know, that sounds familiar, because guess what? Obamacare does the same thing! The only difference is that the waiver stipulates that in order to get federal funding for their program, the state must come up with a plan that covers at least as many people as Obamacare and has similar cost savings. Sounds pretty reasonable, right? It only makes sense that the federal government encourage states to only go forward with plans provided that they work. No one wants to waste taxpayer dollars on programs that don't.
My point in fleshing this all out is to emphasize how much we have to lose if this law gets overturned. Are we really going to toss out a genuinely good law on the basis of spurious arguments made by the very same people who previously proposed the idea? Are we really going to deny millions of Americans access to health insurance? Are we really going to leave health care reform in the hands of barnyard economists like Paul Ryan, whose only plan for bringing down Medicare costs is to make old people pay for more of their medical procedures? No, we can't. There's too much at stake.