Saturday, March 31, 2012

On the Individual Mandate, Part Two: The Uniqueness of the Issue

Yesterday, I argued that based on their jurisprudence, the Court will strike down the Obamacare mandate 5-4.  Today, some further predictions about the Court’s actions, based on the uniqueness of this particular case.

First, the uniqueness of health care. The Obama Administration makes a very valuable point.  The Justices are concerned about one central question: if the federal government can compel individuals to buy health insurance, is there anything they cannot compel you to buy?  The slightly humorous hypothetical example was broccoli.  Could Congress pass a law mandating that I buy broccoli?  Since nobody thinks they should be able to do that, key to the Obama argument is that health insurance is unique.

More about this tomorrow, but the argument – correct, I think – is that health insurance is unique, and thus uniquely subject to Congressional legislation, because (a) everyone can get sick, (b) you never know when you’ll get sick, and (c) the country recognizes an obligation to keep people alive and well. 

Sometimes libertarians make comparisons between health insurance and auto insurance.  But the huge difference is that if your car dies, it’s just a car.  The Obama Administration rightly argues that we feel a weightier obligation not to let people die; and health insurance (or some kind of safety net) of some kind is central because you never know who’s going to get sick next.  Therefore, says the Obama Administration, one needn’t worry that this Congressional intrusion in individual liberty is limitless.  We can draw a very clear line between Congress’s right to compel you to buy health insurance and a right to make you buy anything else.

That’s a good argument.  But I don’t think it will convince Kennedy.  The reason is that health is such a universal kind of thing.  At first glance, it seems that health is a limited good – Congress intervenes on this one thing, but on nothing else.  But then you realize that almost everything in life involves health.  Broccoli moves from being a silly example (eating broccoli a meaningless action that many people don’t want to take) to actually a very good example (broccoli as arguably important to your health). 

If Congress has the right to make sure you are taking care of your health, Congress has the right to ask if you’re getting enough sleep, exercising, engaging in risky behavior, consuming good or bad foods, minding your posture, or causing yourself unnecessary stress.  If Congress can compel you to watch out for your health, Congress could argue that yoga, tai chi, and meditation are good for your health, and issue a mandate for those.  The Court cannot intervene by disagreeing on the concrete judgment that meditation is good for your health; if it agrees that everything to preserve health is fair game for Congress, it has to allow these things.

The line is actually quite blurry, because health, precisely because it’s important as outlined by the Obama Administration, ends up being a limitless case.  What makes health care unique is precisely what makes it limitless.  Thus Kennedy (I authoritatively predict!) will vote against the insurance mandate.

The last consideration of the Court’s decision is the issue of “severability”: IF the Court strikes down the individual insurance mandate, can the rest of the law stand?  The Court is said to have a “presumption of severability”: that is, unless proven otherwise, the Court assumes that it can strike down one part of a law, and leave everything else in place.  But the question is whether it’s leaving the rest in place if it strikes down this point.  That is, is the rest of the law unchanged when this part gets struck down?

The answer, I think, is no, and from what I’ve read, even Sotomayor (who is a utopianist, and thus will have no problem with the mandate, but who does have some concern about maintaining her independence, so that she does not look like a political hack who takes orders from the President who named her to the Court) may agree.  There was universal agreement when the law was put into place that it doesn’t work without the mandate.  This was not just one provision among many – comparable, for example, to the particular way the law deals with abortion, which could stand or fall without changing the rest.  This was considered to be the lynch pin, without which the “cost curve” bends in the wrong direction and the whole law doesn’t work. 

Certainly, for example, striking down the individual mandate also kills the rules about preexisting conditions.  Under the law as written, an insurer can’t deny you insurance just because you have a preexisting condition.  And that works because everyone has to get insurance anyway (the mandate).  But take away the mandate, and the preexisting-condition rule destroys the whole rationale of insurance.  If you know that you can get insurance after you already have a problem, then you only buy insurance when you have a problem.  Like buying car insurance only when you have a repair to make.  This part of Obamacare just totally doesn’t work without the mandate.

So, okay, strip that out.  But what else needs to be stripped out?  The Obamacare legislation is famously long, so long that almost none of the legislators who passed it were able to read through the whole thing.  The Justices, including Sotomayor, were extremely skeptical of their ability to go through and figure out piece by piece, through hundreds upon hundreds of pages of technical legislation, what is and what isn’t affected by the mandate.  That becomes extreme micromanagement by the Court: impracticable for them, and inappropriate, since it really gets into properly legislative activity.

Thus the Court has to say, if the mandate goes, the whole law goes.  Send the issue back to Congress.  Say, “figure out how this works without a mandate, and pass something that works.”  We’re not striking down the other pieces per se, so you can try them again.  But it’s your job to figure out what works without the mandate and what doesn’t – as well as what you need to do to replace it.

And the great ironic thing hanging over everyone’s head is the obvious fact that Congress has changed.  Ordinarily, striking down the whole law wouldn’t be such a big deal.  If Congress actually wanted the law that it passed, then the Court could strike down the whole thing based on problematic piece, and Congress could quickly figure out the necessary modifications and save what could be saved. The problem is that they didn’t pass the law by legitimate means in the first place – didn’t have enough votes – and then there was a huge public outcry against it, and a landslide Congressional election almost entirely based on the unpopularity of the bill. 

Surely, at least behind closed doors, the Justices have to be acknowledging this: the only reason to make the severability argument is because you know perfectly well that the present Congress DOESN’T want to repass this bill.  Hardly deference to Congress, then, to say (a) that you’re going to strip their bill of its original meaning, and then (b) that you’re doing it precisely so that the current Congress can’t change what they want to change.  It would be extreme interference in politics for the Court to make a judgment of severability precisely to protect Congressional legislation from Congressional elections.