That’s still my prediction, even after a brutal first day of questioning.
Nobody disputes that the Federal government could set up a single-payer healthcare system, or that the government could levy taxes of whatever sort to fund it. (Currently, we have just such a system, called Medicare, funded by a tax on wages.) Nobody disputes that the government could, alternatively, set up a system of taxes to fund vouchers to be distributed to individuals to purchase health insurance from private providers. (We already have one of those as well: Medicare part D.) Moreover, nobody disputes that the government could provide for a tax credit for any individual who already owns health insurance (such as through their employer), such that nobody winds up paying for insurance twice.
Therefore, the question at issue is not whether or not the government can compel everybody to purchase insurance from a private provider. The system I outlined above would do exactly that – but payment would pass through the government (people would pay taxes, the taxes would fund vouchers, the vouchers would be redeemed by insurance companies for cash from the government). The issue is whether the government can compel you to write the check directly to the insurance provider.
I understand why this seems like a huge leap in terms of the government’s power. They can order you to take an affirmative act! You must buy this product whether you want it or not! You can’t leave the market! But the affirmative act you are required to engage in is writing a check. And that is something we already know the government can force you to do.
Let’s compare to the famous broccoli example. The government wants to make sure everybody has access to broccoli. It seems obviously absurd that the government could order you to purchase broccoli once a month. But consider. The government could decide to make broccoli available from government-run grocers; no problem. The government could, instead, distribute broccoli vouchers, funded (let’s say) by a per-calorie food tax (which would capture the entire population – you can’t avoid it without eating), with a rebate of said tax if you can demonstrate that you purchased a requisite allotment of broccoli with cash. That looks, to me, like something clearly within the government’s power – tax to promote the general welfare and all that. But it’s also substantively identical to a broccoli mandate. In both cases, anybody who doesn’t purchase broccoli voluntarily is obliged to pay money, and receive broccoli in exchange.
Of course, nobody can make you eat the broccoli. And, similarly, nobody can make you avail yourself of the insurance you are provided. But the government can make you pay for all sorts of stuff you don’t want – bridges to nowhere, wars in the Middle East, etc. And they can tax you pretty much any way they like to pay for it, including directly, irrespective of your participation in commerce. Broccoli’s the least of it.
The principal contention of the plaintiffs in the ACA case is that regulating “inactivity” cannot be construed as regulation of interstate commerce – you can only regulate someone already participating in a market, not somebody who has chosen to stay out. The government’s response is that everybody is going to use healthcare at some point, and that the government, in fact, mandates that health care be provided universally in emergency circumstances, regardless of ability to pay. So everybody is already “insured” in some sense by the government (just not very efficiently). Therefore everybody has entered the market. Therefore everybody can be made to pay.
The tone of Roberts’s and Kennedy’s tough questioning was: we get that, but this still feels like an open-ended grant of power to the government. If the government can order you to buy health insurance, what can’t the government order you to do?
My own answer to that is: the government can’t order you to do things (except in the context of a military draft), only to pay for things, and that’s precisely because ordering you to buy something is substantively identical to taxing you and providing you with that thing (whether directly or through a private provider). In either case, you pay the money and you get the product or service, whether you want the thing or not. That distinction – between purchases and other acts – is not a specious distinction.
I don’t know that the Court will accept that; they probably want a stronger limitation on what the government can order you to buy. But that is what Roberts and Kennedy are groping for. They want some basis for saying: yes, Congress can make you pay for health insurance, but they can’t just make you enter into any transaction whatsoever. And once they find that basis, as narrow as they can make it, they’ll vote to uphold, because I don’t believe Roberts or Kennedy wants to strike down such a massive, substantive economic reform (this isn’t the Violence Against Women Act) for fear of what such an action would do to the Court’s credibility.
But I could be wrong. They might buy into the active/inactive distinction. In that case, all the government would have to do to salvage health-care reform is to do the workaround I described above: levy a tax, provide a voucher, and provide for a tax credit if you already own insurance and don’t need the voucher. There’s something to be said for clarity for such an alternative – a mandate is a tax, really, so why not call it that? – and there’s something to be said for clarity in the system as it is – if you pay the check directly to the insurer, there’s no intermediary who could confuse you about price signals, whereas if you are taxed and rebated and vouchered, you might have no idea what you’re actually paying. But nothing, in terms of a personal experience of freedom, would be different. (Alternatively, the Federal government could strongarm the states into adopting Massachusetts-style mandates of their own (by tying continued Federal support for medical care in the states – and there’s a lot of it – to the adoption of such mandates, similar to the way they strongarmed the states into adopting a national speed limit). Again, I don’t see a big difference in the individual experience of freedom between the Feds basically forcing the states to adopt a mandate and the Feds adopting a mandate directly.)
Of course, the votes aren’t there for such a re-worked ACA right now. And regardless of the outcome of the 2012 election (and how either striking down the law or upholding it will affect that contest is a whole ‘nother topic), the votes likely still won’t be there immediately after. But in a practical sense, that’s what this fight is about: is there enough genuine popular opposition to health-care reform along Obamacare lines (or lines further left) that even after another couple of elections, even in the wake of the collapse of the rest of Obamacare (which is pretty popular – the public likes the regulatory benefits from the law; they just don’t like paying for them), there still won’t be the votes to enact anything resembling a national guarantee of health insurance in the United States.
Personally, I don’t like that bet. But then again, I think the ACA is basically a good start, something the GOP should have been fighting to reform rather than to demonize. So I suppose I would say that.