Judicial politics of health care

Understanding the wrinkles of the "Obamacare" case? ... Politics, law and social policy ... Congress must not regulate "breathing in and out" ... The broccoli argument ... "Specious logic" on the commerce clause ... Stephen Keim and Benedict Coyne get to grips with the thinking of the US Supremes 

President Obama: mixing it with the Supremes

"The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors' benefits was in the 1930's. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments."

Justice Ruth Bader Ginsburg 

In a surprising judgment in National Federation of Independent Business v Sibelius, Secretary of Health and Human Services, delivered at the end of June, the US Supreme Court came within a wet liberal's whisker of destroying perhaps the key decision of Congress in President Obama's first term.

In a complex and divergent decision, the court fundamentally upheld the constitutionality of the Obama Administration's important Patient Protection and Affordable Care Act 2010 (PPACA).

Opinions of the Court were variously divided and surprising alliances were formed, including the usually conservative Chief Justice Roberts lining-up with the liberal bloc on the court - Justices Ginsburg, Breyer, Sotomayor, and Kagan - to save the core of the legislation.

The other three arch conservatives - Justices Scalia, Thomas and Alito - remained true to type, supported by the occasional swing man, Justice Kennedy. 

Background

THE PPACA represents the Obama Administration's comprehensive overhaul of the American health care system.

It was enacted by Congress in 2010 to decrease the overall cost of health care and to increase the number of Americans with health insurance coverage.

One of the key provisions, central to this case, is the individual mandate that enforces universal health insurance coverage (s.5000A).

The mandate requires most Americans to maintain "minimum essential" coverage or be forced to make a "shared responsibility payment" to the Internal Revenue Service (IRS) along with their taxes as a "penalty" for non-compliance.

The mandate is essential to the Act because the PPACA does away with an insurer's ability to factor an individual's health characteristics into their insurance premium, making near universal coverage essential.

The other notable provision considered in the case, was the Medicaid expansion under s.1396c.

The PPACA expanded the scope of the Medicaid program beyond federally funding states to assist certain specified in-need categories of people to requiring and funding states to provide assistance to all adults whose incomes do not exceed 133 percent of the federally determined poverty level.

Chief Justice Roberts and the majority

Chief Justice John Roberts delivered the lead judgment of the court.

Roberts and the four other conservative judges, Scalia, Kennedy, Thomas and Alito, formed a majority in finding that the individual mandate was not supported by the commerce head of power in the Constitution - essentially on the basis that inaction in failing to purchase health insurance could not be construed as a "commercial activity".

Justice Ruth Bader Ginsburg dissented on this point and was joined by the other three liberal Justices, Breyer, Sotomayor and Kagan.

However, Chief Justice Roberts abandoned his conservative colleagues to join in agreement with Justices Ginsburg, Breyer, Sotomayor and Kagan to find that the mandate was supported by Congress's taxation power.

This decision by the Chief Justice has caused an earthquake within conservative politics in the US.

On the Medicare question, a new larger majority formed.

Only Justice Sonia Sotomayor stayed with Justice Ginsburg to support the proposition that it was permissible for Congress to threaten to withdraw all Medicaid funding if a state did not accept the additional funding and the obligation to provide the additional coverage.

The other seven justices, conservative and liberal, found that the terms of the Medicaid expansion were impermissibly coercive upon the States, giving them no effective choice whether to accept the monies offered.

Importantly, the four liberal justices joined with the Chief Justice to hold that that the new Medicaid provisions could be severed and were not fatal to the validity of the rest of the PPACA.

The joint dissent

Conservative Justices Scalia, Thomas and Alito were joined by the swing man, Justice Kennedy, in a judgment that was one vote short of shredding the 900 page PPACA.

They decided against the mandate on both the commerce and taxation point and found the rest of the Act to be non-severable.

The taxing power argument

The joint dissenters held that the individual mandate is neither a constitutional exercise of Congress' power under the commerce clause nor under the tax and spending power.

On the tax and spending power, the concern was not that Congress could not have achieved its objective under that head of power, but the form in which Congress couched its words suggested a penalty.

The commerce clause argument

The point on which the dissenters joined with the Chief Justice was in concurring that inaction in failing to purchase private health insurance could not be construed as a commercial activity able to be regulated under the commerce power.

Despite being of little effect in this case, it's a view that points to the likelihood of more decisions in the future, such as Citizens United v Federal Election Commission - where the spending of large sums of money was allied with the exercise of free speech.

It tore apart a long consensus on regulating election spending in the United States and is currently ensuring that those large sums of money are doing their best to distort the electoral discussions now underway. 

The majority on the commerce clause point ignored the reality of the market to be regulated and declared that if regulation of inactivity was deemed constitutional the power of Congress would excessively extend to making "mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity". 

Ginsburg: not moved by the broccoli argument

Justice Ruth Bader Ginsburg and constitutional common sense

Justice Ginsburg, with the agreement of her liberal colleagues, expressed the common sense view of the commerce power, about which one might have been forgiven for thinking all controversy had been removed.

The "inaction" distinction of the five conservative justices brings back memories of the conservative majorities that cut a swathe through the popular policies of the New Deal in the 1930s and brought President Roosevelt to the brink of stacking of the Court.

Justice Ginsburg pointed out that the approach taken by Congress was one that preserved active involvement of private enterprise and the States. Congress could have legislated for a tax that allowed the government to completely take over the role of providing and funding healthcare.

Justice Ginsberg also set out the significance of the free riding of healthy, well off young people, who would avoid medical insurance until their later years thereby placing a burden on the rest of the community by failing to make a contribution.

Because of its free riding nature and its extraordinary effect on insurance markets, Justice Ginsburg pointed out that those refusals to buy medical insurance were as much part of the market as the subsequent actions of the same people to buy both insurance and health care when it suited them.

Justice Ginsberg referred to the Chief Justice's "narrow" reading of the commerce clause as, "rigid ... crabbed ... [and] disserving future courts".

She accused him of employing "specious logic" in accepting the "broccoli argument" (which she referred to as the "broccoli horrible" argument).

The broccoli argument concerned an analogy that taking a realistic view of a refusal to buy health insurance until middle age was the same as penalising a shopper for refusing to buy "healthy" broccoli at the supermarket.

Justice Ginsberg accused the Chief Justice of using the commerce clause against the interests "of those who labor to sustain it", that is, the bulk of the populous, working class Americans. 

Waning popular approval for the court

AS a result of his switch stance and novel argument Roberts has been pilloried by the right and fallen out of favour with conservatives.

Yet it is conservatives who have played havoc with the court's reputation in recent times. As the New York Times reported:

"More than half of Americans said the decision in the health care case was based mainly on the justices' personal or political views. Only about three in 10 of them said the decision in the case was based mainly on legal analysis." 

The legitimacy and integrity of the court has been called into question in recent history.

As well as the decision in Citizens United the court has been perceived as acting in a partisan manner in Bush v Gore.

This has led to speculation that getting back in touch with the people was the motivation for the Chief Justice to side with the liberals in upholding the key aspects of Obamacare.

Conclusion

THE question for the future is whether this decision signals a changing attitude and a new majority on the Supreme Court, or whether it will be back to normal with only Justice Kennedy's occasional liberal moments to hold back judicially conjured attacks on the sensible operation of democratic processes in the United States.

Stephen Keim & Benedict Coyne