And now it’s all over but the shouting. The third and final day of arguments before the Supreme Court, on the constitutionality of the Affordable Care Act, which now even the administration calls Obamacare, wrapped up – so the shouting can begin, as that’s all there is to do as the nation awaits their decision. And that’s not likely until late June, or even a few weeks later. And no one quite knows what they’ll decide, so all the talk will take place in what-if land, that odd realm known to semanticists as the subjunctive mood – where you talk about what’s not real as if it is. And a linguistic note – the French speak and write in the subjunctive quite often, which might explain everyone from Descartes to Sartre and Camus to Jacques Derrida and Michel Foucault. But Americans don’t. Unlike the French we never developed verb-forms for such talk. We didn’t see a need, as we’re not a philosophic lot. But we will be living in the subjunctive for the next few months, which is perhaps where all politics reside, the realm where you talk about what’s not real as if it is.
But the Supreme Court decision may have already been made. At least that’s what the Los Angeles Times reports:
The Supreme Court’s conservative justices said Wednesday they are prepared to strike down President Obama’s healthcare law entirely.
Picking up where they left off Tuesday, the conservatives said they thought a decision striking down the law’s controversial individual mandate to purchase health insurance means the whole statute should fall with it.
The court’s conservatives sounded as though they had determined for themselves that the 2,700-page measure must be declared unconstitutional.
“One way or another, Congress will have to revisit it in toto,” said Justice Antonin Scalia.
And the swing vote just isn’t going to swing:
Agreeing, Justice Anthony Kennedy said it would be an “extreme proposition” to allow the various insurance regulations to stand after the mandate was struck down.
Meanwhile, the court’s liberal justices argued for restraint. Justice Ruth Bader Ginsburg said the court should do a “salvage job,” not undertake a “wrecking operation.” But she looked to be out-voted.
So the Affordable Car Act may be toast, or is toast. Yes, Edwin Kneedler, an administration lawyer, a deputy solicitor general, was urging caution, saying it would be “extraordinary” for the court to throw out the entire law – whining about how two and a half million young folks, those under twenty-six and on their parents’ insurance now because of the new law, would be “thrown off the insurance rolls.” But that didn’t get far. And the administration was hinting that it was prepared to accept a ruling that some of the other reforms should be abandoned if that individual mandate thing were to be struck down. Without that insurers really should not be required to sell coverage to people with preexisting conditions – that would bankrupt insurance companies. So the Obama folks hinted they’d give that up, reluctantly. But Kneedler said the court should go no further. And the court’s conservatives said the law was passed as a package and has to fall as a package – so too bad. If you can’t get any health insurance at any price, ever, because you had acne when you were fourteen, well, that’s your problem – although they didn’t put it that way. It was about freedom – buyers and sellers should work these things out without the government stepping in and messing things up. At least that’s the general idea.
But the New York Times’ Ross Douthat, in full subjunctive-mode, wonders if there is a middle ground:
If the Supreme Court invalidates the mandate, the justices’ traditional “presumption in favor of severability” will probably ensure that the rest of the legislation remains intact – which might reassure moderate voters that the health care bill wouldn’t actually trample their liberties, because the courts are on the case. Stripping away the law’s most unpopular component might make the rest of it marginally more popular. And setting a clear limit on liberalism’s ability to micromanage Americans’ private decisions might make voters feel more comfortable voting to re-elect their micromanager-in-chief.
But Andrew Sullivan isn’t buying it:
Ross’s argument rests on the idea that there are workarounds to keep the rest of the bill in place without mandates. They don’t sound that plausible to me. And if your gut objection to the mandate is, like mine, an unease with being told by government you have to buy something, then I don’t see why that feeling changes if it’s a state doing it, rather than the feds.
But Douthat also says this:
If the healthcare law is struck down entirely, people will immediately become more aware of what they will lose: for tens of millions, the option of health insurance at all; for many more, the ability to buy health insurance with a pre-existing condition; for millions of under 26-year-olds coverage under their parents’ insurance, etc. It may be that the law’s eradication by the court would educate the public about the aspects of the bill they like, and make the case for the law the president has signally and pathetically failed to do.
Perhaps that’s possible, but it’s also possible all the awful things Douthat lists are exactly what most people want – in the name of freedom. Many people would have no chance in hell of ever buying health insurance, but at least they’d be free.
But George Bush’s former speechwriter, David Frum, now one unhappy conservative, wonders where this is heading even if the Supreme Court surprises everyone and rules that the law is just fine:
What then? What then is that healthcare comes roaring back as a campaign issue, to which Republicans have failed to provide themselves an answer. Because of the prolonged economic downturn, more Americans than ever have lost – or are at risk of losing – their health coverage. Many of them will be voting in November. What do Republicans have to say to them?
Make no mistake: If Republicans lose in the Supreme Court, they’ll need an answer. “Repeal” may excite a Republican primary electorate that doesn’t need to worry about health insurance because it’s overwhelmingly over 65 and happily enjoying its government-mandated and taxpayer-subsidized single-payer Medicare system. But the general-election electorate doesn’t have the benefit of government medicine. It relies on the collapsing system of employer-directed care. It’s frightened, and it wants answers.
In that case, Republicans will need a Plan B. Unfortunately they wasted the past three years that might have developed one. If the Supreme Court doesn’t rescue them from themselves, they’ll be heading into this election season arguing, in effect, our plan is to take away the government-mandated insurance of millions of people under age 65, and replace it with nothing. And we’re doing this so as to better protect the government-mandated insurance of people over 65 – until we begin to phase-out that insurance, too, for everybody now under 55.
And it didn’t have to be this way:
In 2006, Mitt Romney did the heavy lifting to prepare Republicans for this moment. He readied himself to fight an election as a Republican presidential candidate who not only accepted the ideal of universal coverage, but who had actually delivered it. That would have been quite a story to tell. Had things gone slightly differently in 2008, it might right now fall to President Romney’s Solicitor General Paul Clement to explain to a sympathetic Supreme Court why the mandates in Romneycare in fact are constitutional.
Such a Romney-appointed Solicitor General would have pointed to the array of things the federal government can unquestionably command people to do – including conscript them into combat and tax 98% of their earnings – that are vastly more onerous (and vastly less beneficial to the individual) than buy health insurance. Such a Solicitor General would have noted that it’s absurd to describe as “inactivity” the actual experience of most uninsured Americans: desperately seeking an affordable policy and poignantly discovering that they cannot find it. Such a Solicitor General might even have cited the Supreme Court’s own precedents, including the touchstone case NAACP v. Claiborne Hardware that held that the decision not to buy something was not only an “activity,” but even more: an expressive activity protected by the First Amendment!
But now the choice is, if the Affordable Care Act survives, to say, look, we argued long and hard to give you nothing, but we lost – and if the doesn’t survive, to say, look, we assured that you got nothing, so we’re the real heroes here. That’s not exactly a winning strategy, save for those who like voting for nothing, as the government should do next to nothing. That’s a good part of the voting public. But you have to bet that’s the majority. We’ll see about that.
But maybe the Supreme Court will split the difference and save the Republicans from themselves, as, on the right, Allahpundit says here Sotomayor’s argument in favor of severability has its possibilities:
The argument for having the Court kill the whole thing is more pragmatic than legal, I think – no one wants to see insurers go out of business because Congress ends up gridlocked and paralyzed on yet another issue. But don’t forget (a) the insurance industry has a lot of political muscle and they’ll bring the full force of it to bear on incumbent congressmen to find a solution and (b) given that we’re all going to have to put on our big-boy pants soon to reform Medicare, maybe a crisis now will be a wake-up call in forcing Congress to start thinking big. Surely they wouldn’t sit idly by while America’s health insurance industry disintegrated around them.
But Justice Kennedy was unimpressed with Sotomayor’s point, and at SCOTUS Blog, Lyle Denniston says it’s all over for Medicaid too:
Unless a closing oration by a top government lawyer stirs some real sympathy for the poor, the new health care law’s broad expansion of the Medicaid program that serves the needy may be sacrificed to a historic expression of judicial sympathy for states’ rights. It probably would require the Court to be really bold, to strike down a program passed by Congress under its spending power, and to do so for the first time in 76 years, but the temptation was very much in evidence in the final round of the Court’s hearings this week on the Affordable Care Act. It probably would be done by a 5-4 vote.
Yeah, the argument was made that Medicaid should be left to the states, as the federal government should almost never tell the states what to do. No one brought up George Wallace back in the sixties, trying to stop his state’s universities from integrating. But Adam Serwer says this is a big deal:
Despite all the focus on the individual mandate and whether it could be severed from the rest of the law, the constitutionality of the law’s Medicaid expansion, which was also considered Wednesday, could have a more dramatic impact on Americans’ health care. That expansion will lead to sixteen million more Americans being covered – about half of the entire number of people who would receive coverage under the Affordable Care Act.
And Jeffrey Toobin is still depressed:
This still looks like a train wreck for the Obama Administration, and it may also be a plane wreck. This entire law is now in serious trouble. It also seems that the individual mandate is doomed. I mean, Anthony Kennedy spent much of this morning talking about if we strike down the individual mandate, how should we handle the rest of the law? Now, it is less clear that they are going to strike down the whole law. There does seem to be some controversy in the court about that. Certainly there are some members of the court, Antonin Scalia, Justice Alito, who want to strike down the entire law, but it seemed almost a foregone conclusion today that they were going to strike down the individual mandate, and the only question is does the whole law go out the window with it?
And at the Economist, Matt Steinglass looks at the core problem:
Whether or not you think they’re a good idea, individual mandates are clearly a rational-seeming way to solve problems in the health-insurance market, rational enough that they appealed to the Heritage Foundation, Republicans in Congress, Mitt Romney and so on, and eventually (and reluctantly) to Democrats. But I can’t think of any other area of the economy or society where having the federal government order every citizen to buy a good from a private provider seems like a reasonable solution to a problem, or has seemed so to anyone else, Democrats, Republicans, or what have you.
The whole idea was madness, and Scott Galupo imagines the day after Obamacare goes down:
I predict that Congress’s first order of business, before addressing the plight of the uninsured, will be to reinstate, as a stand-alone measure, the section of Obamacare that closes the so-called “Donut Hole” of the Medicare Part D prescription drug program. The reason is simple. Congress – all of it, not just one party – is over-responsive to the demands of wealthy seniors. If and when they find out they’re going to be adversely affected by the overturning of Obamacare, seniors are going to raise holy hell.
The squeaky wheel gets the oil. They can hire lobbyists.
But Josh Barro, in Forbes oddly enough, argues here that abolishing Obamacare could easily lead to single-payer:
Strike down Obamacare, and only the Left will have a viable plan for universal coverage, and it will be one even less palatable to conservatives than the one that was enacted in 2010. Absent another viable proposal, they will eventually get their way, and Medicare for All will become a reality.
I suspect that’s the case. What we have here is an attempt at a middle way on healthcare: universal coverage within a private system that bars discrimination based on pre-existing conditions. If that cannot be done constitutionally with a private-public partnership, and cannot be done at all with an entirely private market, then … we logically end up with single payer. Which would be quite a resolution, wouldn’t it?
But maybe America doesn’t want universal coverage. If fifty million or more Americans cannot get coverage, or cannot afford coverage, or choose to do without insurance, that’s just the way things work out. It’s a free country. And you solve your own problems, or you don’t.
Is that too harsh, or an unfair characterization? Slate’s Dahlia Lithwick, after hearing the final day’s arguments, doesn’t think so:
The fight over Obamacare is about freedom. That’s what we’ve been told since these lawsuits were filed two years ago and that’s what we heard both inside and outside the Supreme Court this morning. That’s what Michele Bachmann and Rick Santorum have been saying for months. Even people who support President Obama’s signature legislative achievement would agree that this debate is all about freedom – the freedom to never be one medical emergency away from economic ruin. What we have been waiting to hear is how members of the Supreme Court – especially the conservative majority – define that freedom. This morning as the justices pondered whether the individual mandate – that part of the Affordable Care Act that requires most Americans to purchase health insurance or pay a penalty – is constitutional, we got a window into the freedom some of the justices long for. And it is a dark, dark place.
And this is how dark it was:
It’s always a bit strange to hear people with government-funded single-payer health plans describe the need for other Americans to be free from health insurance. But after the aggressive battery of questions from the court’s conservatives this morning, it’s clear that we can only be truly free when the young are released from the obligation to subsidize the old and the ailing. Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm – even though, one day that will describe all of us. Or as Justice Antonin Scalia later puts it: “These people are not stupid. They’re going to buy insurance later. They’re young and need the money now.” (Does this mean that if you are young and you pay for insurance, Scalia finds you “stupid”?)
Yes, you buy insurance when you need it, the day you’re hit by that bus or something. But Scalia couldn’t be saying that, really. But he was, and Lithwick suggests this stems from an odd definition of freedom, that leads to other dark places:
Freedom also seems to mean freedom from the obligation to treat those who show up at hospitals without health insurance, even if it means letting them bleed out on the curb. When Solicitor General Donald Verrilli tries to explain to Justice Scalia that the health care market is unique because “getting health care service … is a result of the social norms to which we’ve obligated ourselves so that people get health care.” Scalia’s response is a curt: “Well, don’t obligate yourself to that.”
And that’s the core of things here:
Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there are some severe moral criticisms of that rule, but that’s generally the rule.”
It may be immoral to stand by and watch someone die, but the law is on your side – case closed. And then it got bizarre:
Freedom is to be free from the telephone. Verrilli explains that “telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize.” To which Justice Scalia is again ready with a quick retort: “Only if you make phone calls.” Verrilli tries to point out that “to live in the modern world, everybody needs a telephone,” but that assumes facts not in evidence.
Freedom is the freedom not to join a gym, not to be forced to eat broccoli. It’s the freedom not to be compelled to buy wheat or milk. And it’s the freedom to purchase your health insurance only at the “point of consumption” – i.e., when you’re being medivaced to the ICU (assuming you have the cash).
Justice Ruth Bader Ginsburg notes that: “Congress, in the ’30s, saw a real problem of people needing to have old age and survivor’s insurance. And, yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. So, they required everyone to contribute. There was a big fuss about that in the beginning because a lot of people said – maybe some people still do today – I could do much better if the government left me alone. I’d go into the private market, I’d buy an annuity, I’d make a great investment, and they’re forcing me to paying for this Social Security that I don’t want. But that’s constitutional.”
And there’s this:
Sotomayor, again pondering whether hospitals could simply turn away the uninsured, finally asks: “What percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance – do you think there’s a large percentage of the American population who would stand for the death of that child if they had an allergic reaction and a simple shot would have saved the child?”
Scalia would say yes, as there is a larger principle here, freedom, which confuses Lithwick:
But we seem to want to be free from that obligation as well. This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old.
But Lithwick finally gets it:
Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.
But those were the good old days of course. And now it’s all over but the shouting.