Who Are We?

Today is Sunday. And Father’s Day.

Believers who celebrate Sabbath on Sunday will go to church and hear exhortations about living a good and moral life.  Depending upon the denomination, the focus will be on love and compassion, charity and social justice.

In most families, Fathers will receive sentimental greeting cards from their children thanking them for their patience and love and support. Some will get sweaters or ties or sporting gear; others will have a family dinner.

These Norman Rockwell experiences make us feel good about ourselves. We’re good people, family people, caring citizens.

So here is my question: how many Americans will go to work tomorrow for an employer who has cut his or her hours in order to avoid paying for health insurance? If we are to believe the media reports, it’s not an insignificant number.

At Indiana University, where I teach, there’s a new rule that Graduate Assistants–already poorly paid–cannot work more than 29 hours a week, because then they would be eligible for health insurance. The Indianapolis Star recently reported that several Indiana school districts were planning to cut back hours for many staff positions, so that they could avoid insuring the people in those positions. Private employers, of course, have been engaging in such practices for years, in order to avoid compliance with a number of regulations that apply only when employees work a certain number of hours.

This response to an effort–however flawed–to extend basic health services to people who currently can’t afford those services tells us something about our culture. And what it tells us isn’t consistent with that Norman Rockwell version of ourselves.

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Back Home Again in Indiana…

As we walked into the passenger lounge in Chicago’s Union Station on our way home, the TVs were all on “breaking news”–the Supreme Court had upheld the Affordable Care Act, aka “Obamacare” by a 5-4 vote.

There’s much that could be said about the Court’s decision–and virtually all of it has now been said. Initially, most legal scholars had predicted this result, which was dictated by relevant precedent; however, recently, Scalia had gone out of his way to reject those precedents, including his own prior rulings, stirring speculation that the Court might overturn the Act. (Scalia’s behavior, in several recent cases, has been so bizarre as to generate a cottage industry in armchair psychology…with one notable Court observer suggesting that he has “jumped the shark.”)

Lawyers and legal scholars will be in hog heaven dissecting the decision, the dissent, and what many attribute to Chief Justice Roberts’ concern that a contrary ruling would further damage the legitimacy of a politicized Court. I’ll leave those arcane arguments to them. What I have found utterly amazing–and ludicrous–is the public reaction from the right.

It is perfectly acceptable to disagree with the Supreme Court. I do it all the time myself. It is perfectly acceptable to dispute the wisdom of the ACA as policy. I’d have preferred a “Medicare for All” approach myself (although I recognize the political constraints that made such a solution to our health care crisis impossible). But the hysteria that greeted the Court’s ruling is quite simply astonishing. People are threatening to move to Canada (which has truly socialized medicine), comparing Obama’s effort to extend access to health care to Hitler’s Germany…this is the stuff of mass psychosis.

And then there is Mike Pence.

The man who has been blanketing our airwaves with soft-focus, “just a Hoosier like you” thirty-second ads, the man who is skillfully rewriting his own history to obscure his radical persona, just couldn’t stay in (his newly assumed) character. Pence compared the Supreme Court’s ruling to 9/11.

Think about that for a moment. A President and a majority of the legislature recognized that America had a healthcare crisis. Fifty million people could not afford health insurance, while spiraling costs posed a huge threat to the economy. Half of all personal bankruptcies were due to medical emergencies…I could go on, but you know the drill. The President and Congress addressed the problem with a complex piece of legislation.

And this–in Mike Pence’s strange reality–was equivalent to a terrorist attack. Trying to provide universal access to medical care is just like killing 3000 innocent people.

Pence immediately tried to walk this obscene reaction back, by calling it a “thoughtless” remark. As a friend of mine observed, thoughtless is when you forget your anniversary.

In what reality is an effort to fix a national problem, an effort to provide health care to children with pre-existing conditions, an effort to reign in abuses by insurance companies, a national calamity? What accounts for such a bizarre and disproportionate response to a measure that was first proposed by Republicans like Bob Dole, and first instituted at the state level by none other than Mitt Romney?

Someone recently said that if Obama endorsed oxygen, Republicans would suffocate themselves. This irrational response to a piece of well-intentioned legislation would seem to prove the point.

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Is the Individual Mandate Constitutional?

The most controversial provision of the Affordable Care Act  is undoubtedly the individual mandate–the requirement that almost everyone carry health insurance.

Why a mandate? As the LA times said, “A mandate is key for reducing the ranks of the uninsured, who often turn to emergency rooms for care, driving up everyone’s costs. Spreading the costs—among healthy and sick—is also the only way to make the reforms work.” Health economists agree–in order for this reform to work, it has to include the mandate. So—It’s necessary, but is it constitutional?

According to most constitutional scholars, yes. Here’s the analysis:

Congress has authority both to regulate commerce among the several states, and to “lay and collect taxes to provide for the general welfare.” The Senate bill requires that citizens purchase qualifying health coverage; if they don’t, they pay a tax penalty. Exemptions are granted for religious objections, financial hardship and a variety of other reasons. The House bill didn’t impose a “mandate” per se, but amended the Internal Revenue Code to levy a “tax on individuals without acceptable health coverage.” Functionally, the two provisions are essentially the same. (Interestingly, opponents concede that Congress could lawfully establish single-payer (Medicare for All, say), and tax us to pay for it.)

In 1944, Supreme Court established that insurance is an economic activity that falls within Congress’ regulatory power. More recently, the Lopez and Gonzales cases clarified how the Court understands “economic” and “non-economic” activities within the context of Commerce Clause. In Lopez, Court held that Congress exceeded its authority by legislating against guns near schools; in Gonzales, it ruled that the act of growing marijuana at home could be regulated by the federal government even though the conduct was not itself economic, because the larger interstate “regulatory scheme would be undercut unless the intrastate activity were regulated.” As one scholar has summarized, “ If health insurance is itself an ‘ingredient’ of interstate commerce and ‘self-evidently’ within Congress’ Commerce Clause authority, the statutory goals for broadening, making more efficient and less costly, and otherwise improving health insurance coverage, fit equally within that authority.

Further, the individual mandate requirement easily qualifies as a ‘necessary and proper’ means of achieving those goals, under the standard first articulated by Chief Justice Marshall [in 1819] and adhered to since: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”

The Federalist Society and other opponents of the mandate have argued that refusal to purchase insurance is inactivity, and thus not subject to regulation. How, they ask, can government regulate a decision not to act?  But as judges have noted who upheld the mandate, people who refuse to buy insurance are not doing “nothing.” They are gambling that they won’t need coverage, or they are deciding to self-insure. In either case, they are also deciding to game the system, making the overall program unworkable.

Refusal to purchase health insurance would be analogous to refusal to pay social security and Medicare taxes or, at the state level, refusal to purchase auto insurance.

Most constitutional scholars believe the mandate will be upheld; others–noting the ideological tilt of several of the Justices–are less certain, although they agree that precedents would ordinarily require such a result.

Ironically, since opponents of the mandate are making the case that ONLY a single-payer system is constitutional, a victory for opponents might actually result in the enactment of a single-payer system, since the multiple markets we’ve been operating under are simply not sustainable.

Works for me.

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I Don’t Like This Law So It Must Be Unconstitutional

Yesterday, I spoke to a high school government class, filled with bright high school seniors who have thus far escaped any meaningful encounter with the U.S. Constitution.It came as a surprise to most of them, for example, that the Bill of Rights applies only against government. So we talked a good deal about the limits on government action, and what our government can and cannot require of us.

One of the students asked about the constitutionality of the individual mandate provision of the new health-care reform law.

Now, I’m not a fan of the new law; I would have much preferred a simple “Medicare for All” approach.  But there are a lot of laws I dislike, and a lot that I believe represent poor policy choices. That doesn’t make those laws unconstitutional.

There is absolutely no doubt that government could constitutionally establish “socialized” medicine–whether along the lines of Medicare for All, or another single-payer system funded out of tax revenues. The Affordable Care Act works with private insurance companies–and politically, that’s undoubtedly the only way it could be passed. But in order for the new system to work, everyone must purchase insurance. Opponents claim the government cannot force people to do so.

The bill offers subsidies to people who cannot afford insurance. It exempts people for whom the purchase of insurance would be a financial hardship. It grants other exemptions for American Indians, for those with religious objections, undocumented immigrants, incarcerated individuals, and those living below the poverty level. The rest of us must buy.

Two separate constitutional provisions allow the government to require this: the taxing power and the commerce clause.

The taxing power argument is straightforward: we either buy insurance or we pay a tax. The Commerce Clause gives Congress considerable latitude to craft “rational” means to achieve “legitimate” purposes. Opponents argue that a decision not to buy insurance is “inactivity” and that “inactivity” cannot be taxed or regulated. But as constitutional scholars have pointed out, those who choose to go without insurance–insurance that the government is making affordable for them, even subsidizing for them–are in fact doing something. They are shifting costs to everyone else. As Yale Law Professor Jack Balkin has written, they are making a decision to self-insure. That decision “games” the system and makes it more expensive for everyone else.

The individual mandate is not functionally different from our obligation to pay Social Security and Medicare taxes, or the requirement to carry auto insurance.

At the end of the day, the argument against the mandate–and the Affordable Care Act–is simple, if uninformed: I don’t like this law, therefore it is unconstitutional.