Justice Kennedy’s “Nuanced View”: A Bad Beginning And A Better Ending
The Constitution’s words enabling Congress to “regulate commerce…among the several states” gives the United States broad authority over economic matters — although non-economic regulation is far more suspect. Early in today’s argument, however, several of the justices appeared poised to impose an entirely novel limit on Congress’ authority — suggesting that laws which require, in Justice Kennedy’s words, an “affirmative duty to act to go into commerce” is somehow constitutionally suspect. So there were no shortages of pointed questions about the Affordable Care Act’s requirement that everyone either carry health insurance or pay slightly more income taxes.
There are two reasons why this requirement is necessary. The first is that, because the law prohibits insurers from denying coverage to patients with preexisting conditions, it must also ensure that healthy people enter the insurance market before they become sick. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, leaving nothing left for the rest of the plan’s consumers. The second reason relates to a problem with our health system that long predates the Affordable Care Act. Because emergency rooms must provide at least some degree of care free of charge to people who cannot afford it, these costs wind up being transferred to persons with insurance — driving up annual premiums as much as $1,100 on the average patient.
Initially, the Court’s conservatives appeared highly credulous of the plaintiffs’ false claim that upholding the health reform would necessarily enable the federal government to do absolutely anything. Solicitor General Don Verrilli addressed this question by explaining that the health care market is unique in that it is the only market that everyone inevitably participates in — we all get sick at some point — and that, because of health care’s sudden and unexpected costs, people typically pay their health bills through insurance. Thus, he explained, because everyone is already caught up in the health care market, the Affordable Care Act does not impose any kind of “duty…to go into commerce” — it merely tells people who are already in the health care market to make sure they pay for their health costs through insurance.
While Verrilli was still at the podium, the Court’s conservatives did not seem to buy this claim. A ray of hope emerged at the end of the oral argument, however, when Justice Kennedy expressed a somewhat nuanced view:
[T]he government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.
There’s a lot going on in this statement. On the one hand, Kennedy is clearly skeptical that, if the Court says this market is unique, the government won’t simply argue that the next market is also unique in the next case. On the other hand, Kennedy also appears sympathetic to the second reason why the mandate is essential — that the problem of uninsurance leads to billions in health care costs being transferred to other health care consumers. A young person who forgoes health insurance is “uniquely proximately very close” to affecting the health care costs of others, and that may be enough to get Kennedy’s vote to uphold the law.
The big loser in all of this debate, however, is the Constitution itself. The Constitution says nothing about unique markets. Or about the need to impose artificial Congress authority to regulate the nation’s economy. It simply says that Congress can “regulate commerce.” The idea that a law which regulates 1/6 of the nation’s economy is not regulating commerce is, frankly, absurd. Nor was there ever any risk that a decision upholding health reform would lead to all things being permissible. There are many things that are not commercial — federal murder laws, assault laws, child neglect laws or sexual morality laws, for example. A law regulating our entire national health care market, however, is clearly and obviously constitutional.
Justice Kennedy may inevitably vote to uphold the law — he may even bring Chief Justice Roberts along with him — but, whatever the Court does this term, it appears increasingly likely that we live under the constitution of Anthony Kennedy, and that we no longer live under the Constitution of the United States.
By: Ian Millhiser, Think Progress, March 27, 2012
“Ethically Ironic”: How Was Dick Cheney Able To Get A Heart While Many Others Wait?
Dick Cheney has just joined a list of high-profile people, including Steve Jobs, Mickey Mantle, Evil Knievel and David Crosby who, received a transplant and thereby created a controversy. Cheney received a heart on Saturay from an anonymous donor at Inova Fairfax Hospital in Virginia after a 20-month wait. What is controversial about that? Cheney is 71 years old.
He has been through numerous previous operations that indicate he has other serious medical problems. He has only been able to survive due to the implantation of a left-ventricular assist device (LVAD) — a partial artificial heart — that has kept him going long past the point where his own heart could have kept him alive.
Nearly everyone on an LVAD winds up getting sicker and sicker and, eventually, so sick that they come off the transplant waiting list because the risk is too great.
What starts as a “bridge” to a transplant when you get an LVAD can become, the more time that passes, a final destination — you almost always die with the device. So despite his age and health problems, how was Cheney able to get a heart while many others wait?
It is concerning that a 71-year-old got a transplant. Many of those who manage to even make the waiting list for hearts die without getting one. More than 3,100 Americans are currently on the national waiting list for a heart transplant. Just over 2,300 heart transplants were performed last year, according to the United Network for Organ Sharing. And 330 people died while waiting.
According to UNOS, 332 people over age 65 received a heart transplant last year. The majority of transplants occur in 50- to 64-year-olds.
Most transplant teams, knowing that hearts are in huge demand, set an informal eligibility limit of 70.
Cheney is not the first person over 70 to get a heart transplant. He is, however, in a small group of people who have gotten one. Why did he?
Cheney has an advantage over others. It is not fame or his political prominence. It is money and top health insurance.
Heart transplants produce bills in the hundreds of thousands of dollars. The drugs needed to keep these transplants working cost tens of thousands of dollars every year. Organ donations are sought from the rich and poor alike. But, if you do not have health insurance you are far less likely to be able to get evaluated for a heart transplant much less actually get a transplant.
The timing of Cheney’s transplant is ethically ironic given that the battle over extending health insurance to all Americans reaches the Supreme Court this week.
If the President’s health reform bill is deemed unconstitutional, those who are wealthy or who can easily raise money will continue to have greater access to heart, liver and other forms of transplantation than the uninsured and underinsured.
It is possible that Cheney was the only person waiting for a heart who was a good match in terms of the donor’s size, blood type and other biological and geographical factors. If not, then some tough ethical questions need to be asked.
When all are asked to be organ donors, both rich and poor, shouldn’t each one of us have a fair shot at getting a heart? And in a system in which donor hearts are very scarce, shouldn’t the young, who are more likely to benefit both in terms of survival and years of life added, take precedence over the old?
Let’s hope we get some answers to these tough questions as we watch both Cheney’s recovery and the fate of health care legislation that is intended to minimize the advantages that the rich now have over the poor when it comes to proven life-saving treatments.
By: Art Kaplan, PhD, MSNBC Vitals; Contribution by MSNBC News Service, March 25, 2012
“Exotically Countercultural”: The Unhappy Triumph Of The Marketplace
This objection to Obamacare’s individual mandate, by Jonathan Adler at the libertarian Volokh Conspiracy website, grabbed my attention:
“Virtually everyone” may acquire health care—but “virtually everyone” is not “everyone.” Most people may purchase health care at some point in their lives, but some will not. Some people will refuse to purchase health care for religious reasons. Some will not purchase health care because they are lucky enough not to need such care before a sudden death. Still others may decide not to purchase health care because they have chosen to remove themselves from commerce—consider a survivalist or other person who decides to live in a shack, growing their own food, and not engaging in commerce with others.
Consider Adler’s latter example: It strikes me that the vast majority of Americans would find the idea of “not engaging in commerce with others” to be exotically countercultural at best, possibly antisocial or even deviant. Such a reaction is symptomatic of the fact that the marketplace has long enjoyed pride of place in Americans’ moral psychology. “The chief business of the American people is business,” as President Calvin Coolidge famously said.
This ethos has made proper small-l liberals of us, hasn’t it? Americans have been taught by the libertarian right and the Clintonian middle to believe that a commercial relationship between nations—trade—is the only way to achieve lasting international harmony. At least before the great stock market crash of 2008, CEOs were like cult heroes in the popular imagination. From the pluckiness of Horatio Alger’s heroes to the theology of Joel Osteen, success in the marketplace has been seen as an outward confirmation of inward virtue and divine blessedness.
So it’s with some sense of schadenfreude that I see conservatives of the classical liberal variety chafing at the requirement to buy health insurance, calling it an attempt by Congress to “create commerce.” I’m fully aware of the contractarian basis for this objection: that a forced purchase is not a legitimate commercial exchange.
But the paleocon in me responds this way: This is the antitraditional bed you’ve made for us. Now lie in it.
By: Scott Galupo, U. S. News and World Report, March 27, 2012
“In Text And History”: Founding Fathers Would Approve Of National Healthcare Policy
Our Constitution’s text and history demonstrate that the national healthcare crisis—in which tens of millions of Americans lack access to quality, affordable care—is the sort of national problem that the framers of our founding charter wanted the federal government to have the power to solve.
Our Constitution was drafted in 1787 “in Order to form a more perfect Union”—both more perfect than the British tyranny against which the Founding generation had revolted and more perfect than the flawed Articles of Confederation under which Americans had lived for a decade since declaring independence. George Washington and the other delegates to the Constitutional Convention shared a conviction that the Constitution must establish a national government of substantial power, in contrast to the extremely weak central government of the Articles, which was so dysfunctional that Washington thought it nearly cost us victory in the Revolutionary War. (George Washington was also apparently fine with government mandates—he signed into law the 1792 Militia Act, which required young men to outfit themselves with a musket, knapsack, and, in some cases, a serviceable horse.)
Under our enduring Constitution, Congress has the express constitutional authority to regulate interstate commerce—the healthcare industry comprises nearly 20 percent of our nation’s economy—and tax and spend for the general welfare, as well as the broad power to pass laws that help execute these specific grants of authority.
Given the Constitution’s grant of significant authority to the federal government to act in the interests of the country as a whole, it is no surprise that a majority of the lower court judges who have ruled on the healthcare law have upheld it, including prominent conservative judges. Reagan-appointee Judge Laurence Silberman on the D.C. federal appeals court explained that the attacks on the law have no support “in either the text of the Constitution or Supreme Court precedent.” Another conservative appeals court judge, Jeffrey S. Sutton—who clerked for Supreme Court Justice Antonin Scalia—explained that whether you think the law is good policy or not, it clearly passes constitutional muster.
If the Supreme Court Justices are faithful to the Constitution’s text and history, principles of federalism, and precedent—including decisions authored or joined by some of the current conservative Justices—the Court should conclude the healthcare law is constitutional.
By: Elizabeth Wydra, U. S. News and World Report, March 26, 2012
“The Power To Regulate Commerce”: Constitution, Court’s Precedent On Affordable Care Act’s Side
In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from President George W. Bush, the lawsuits challenging the Affordable Care Act have no basis “in either the text of the Constitution or Supreme Court precedent.” And Silberman is right. The Constitution gives the United States power to “regulate commerce … among the several states,” and there is simply no question that a law which regulates one sixth of the nation’s economy regulates the nation’s commerce.
This not a particularly new idea. As Chief Justice John Marshall put it nearly two centuries ago, there is “no sort of trade” that the words “regulate Commerce” do not apply to, and these words give the United States “full power over the thing to be regulated.” The Affordable Care Act regulates trade in healthcare services, and thus America has the full power to regulate this important market.
In challenging the Affordable Care Act, the law’s opponents seek an unprecedented expansion of judicial power that would eradicate all limits on what the nine unelected judges on the Supreme Court can do. Because their entire legal argument has no basis in the Constitution itself, it eliminates any bounds on what judges can do to impose their will on the American people. If judges are free to ignore the Constitution just this once, they can do it whenever they want, and there will no longer be any limits whatsoever on judicial discretion.
In other words, if judges have the power to strike down the individual mandate, there is nothing preventing the Supreme Court from forcing you to eat broccoli.
By: Ian Millhiser, U. S. News and World Report, March 26, 2012
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