Some thoughts on health care and the law

The evolution of the Obama Administration's health care plan confirmed, to me, that traditional liberalism of the kind that dominated mid-twentieth century America has been effectively marginalized. The obvious answer to our health care system was some kind of Medicare for everyone, a government-run system providing a genuine alternative to the private health care industry which, inevitably, tries to take as much money out of the economy as it can while providing a necessity. The original House bill--emerging from perhaps the most liberal House that I am ever going to see again in my lifetime--included such an option, but Joe Lieberman and Ben Nelson killed it in the Senate. Like liberal positions in foreign policy, genuine New Deal-type reforms in domestic policy get serious consideration only in Democratic primaries. After a Democrat is elected they become embarrassments that rarely if ever survive the legislative process--and so it was in this case.

The individual mandate was, of course, an attempt to provide universal coverage without creating a government system. It had the enormous political advantage of appealing to the insurance industry, led by its chief lobbyist, Karen Ignani, since it would provide that industry with millions of young, most healthy and employed customers and therefore, presumably, increase its profits still further. Yet the odds seem to be at least 50%, after last week's oral arguments, that a 5-4 Supreme Court majority will throw this approach out and take us back to square one. (I'll have more to say about the consequences of such a decision in a moment.) And reading those arguments, one sees the extent to which the Administration, by dropping the public option, lost its most effective debating points by adopting the "free-market" approach to a commodity that has no business trading in a free market. Let us take a moment to think how the argument might have been framed.

Health care is not an optional good which we may or may not choose to purchase. We all need some, and most of us, sooner or later, need a lot, the only exceptions being people who die young in accidents or homicides or those lucky folk who live healthy lives and die of their first heart attack or stroke in their 80s or 90s. (Even they, however, given the state of modern medicine, will undergo thousands of dollars of diagnostic procedures in the meantime.) And that, of course, is the difference between the threat of illness on the one hand, and other insurable threats like auto accidents or fires on the other. Insurance for those events is relatively inexpensive because they are so rare. Most of us will never have to pay large bills for car accidents or replace a burned-out home. But nearly all of us will eventually need large sums for medical care.

There is also a critical difference between health care and other "consumer products." We buy consumer products that we need, or simply want, and can afford. But because our society in general and the medical profession in particular still respects a few non-economic values, everyone who desperately needs health care gets it--or at least some of it--whether they can pay for it or not. We do not turn people away from emergency rooms because they have no insurance. In fact, as I learned from medical personnel at a town hall in 2009 which I described at length at the time (search under "town hall," "Whitehouse," and "Reed" if you are interested), for administrative reasons, those patients wind up costing a lot more.

We see, therefore, that health care is a very expensive service that everyone will need sooner or later and that everyone gets, in one way or another, regardless of ability to pay. I would suggest that such a service has nothing in common with your average consumer good and very little in common with exceptional life events for which we buy private insurance. What it really resembles are other public services that we all receive whether we have an immediate need for them or not, such as national defense, local police forces, infrastructure, and fire departments. And we pay for those through taxes, and traditionally compensate most of the people who provide them with secure, medium-income jobs. That model is obviously far more appropriate for health care and that's the model, of course, that most other advanced countries use. We alone allow various corporations, including drug companies and health insurance companies, to make billions of dollars in revenue providing a public necessity.

The problem with conceding the terms of the argument in advance emerged in striking fashion during the oral arguments, particularly with respect to the questions of Justice Scalia, whose vote is not in doubt, and Justice Kennedy, whose vote will surely decide the case. Scalia argued that a government that can pass a law requiring you to pay for health care can also pass a law requiring you to eat broccoli. I would suggest that my argument, above, shows how silly that claim is. What the mandate does is to force people to pay something for the health care which they are almost certain to receive sooner or later anyway, just as taxes force them to pay for various aspects of national defense whether they personally will ever need them or not. Kennedy, meanwhile, worried about the infringement upon liberty, but the whole health care industry is based upon the Hippocratic oath which takes away, properly, the liberty of the health care provider to refuse care. To make it possible for them to provide it, we have no choice but to make sure that everyone pays for it.

Scalia's argument reminded me of something else--an excerpt from a famous 19th-century book by Joseph Story, Commentaries on the Constitution of the United States, published 1832, to which I was fortunately exposed in connection with a conference on law in the early Republic. Story, like nearly all the Founding Fathers, was convinced that government was established for the public good and that the Constitution needed to be flexibly interpreted for it to carry out its functions. On p. 142 I found this paragraph, which Justice Scalia and some of his brethren clearly need to review:

"A power, given in general terms, is not to be restricted to particular cases, merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public deate; and in its common aspect addresses itself so much to popular fears and prejudices, that it insensibly acquires a weight in the public mind, to which it is in no wise entitled. The argument ab inconvenienti is sufficiently open to question, as well as of opinion, to which it leads. But the argument from a possible abuse of a power against its existence or use, is, in its nature, not only perilous, but, in respect to governments, would shake their very foundation. Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. . . .In short, if the whole society is not to be revolutionized at every critical period, and remodeled in every generation, there must be left to those, who administer the government, a very large mass of discretionary powers, capable of greater or less actual expansion according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No constitution can provide perfect guards against it. Confidence must be reposed somewhere; and in free governments, the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise; an ultimately in the sovereign power of change belonging to them, in cases requiring extraordinary remedies."

In short, the theoretical possibility that Congress could pass a law mandating the purchase or broccoli is not a valid argument against mandating the purchase of health insurance. If we have any faith in our democracy, we must be able to trust that a President and majorities of both houses (including, as things now stand, 3/5 of the Senate), will not pass a law mandating the purchase of broccoli. And a truly statesmanlike opinion on the health care law would uphold it, taking note that the Congress and the executive branch spent over a year designing, considering, and passing it in an effort to solve a genuinely pressing and very serious national problem, and adding for good measure that the American people in just a few months will have every opportunity to undo the law themselves by electing Republican majorities and a Republican President, should they choose to do so. I can see no excuse for depriving them of that right.

If however the court throws out the health care law in toto, or even throws out the mandate, I think the effect on Barack Obama will be devastating. I know Democratic pundits are suggesting that he could run "against the Supreme Court," but we are in a real crisis and the country is already lukewarm about the President because most of them have seen few results. To have his signature achievement thrown out will validate some of the more extreme accusations against him and make him look highly ineffective.

We are potentially at a turning point in our history. Justice Story believed the government was established to promote the public good. Franklin Roosevelt adapted that philosophy to the industrial era. For the last thirty years Republicans have engaged in an all-out assault on that concept, and they are not too far from a possible victory. In the last two great national crises the Supreme Court was on the losing side. This time, if they strike down the law, they could do nearly as much to assure victory for the right wing as they did in Bush v. Gore.