Saving Justice Kennedy's blind man and the Affordable Care Act

March 28, 2012 7:17 AM

My dear mother hated broccoli. She was healthy without it. She lived among the hipsters in San Francisco's SOMA district, only her perch was the senior housing at Clementina Towers. Mom never had much money. But boy, did she have health care.
 
"My health is my wealth," she was fond of saying, and when she wasn't healthy, she'd be off to see her fancy UC heart specialists.
 
My mom died before the Clintons attempted their push for reform, and before Obama came up with his intricate compromise. Before then, Mom's old fashioned Medicare plan worked just fine.
 
So I know this crazy Supreme Court debate to overturn the Affordable Care Act would have surely given her chest pains.
 
She'd ask, "Why can't the government just extend Medicare to all?" (Seniors have a way of getting to the point. Unlike lawyers.) Medicare is a single payer system that doesn't have people crying "Socialism!" It doesn't get conservatives' dander up about individual liberty and the broad powers of the federal government.
 
And it works. Everyone gets the care they need.
 
Done.
 
If only mom were alive and in charge.
 
Listening to the audio and reading the transcripts of Tuesday's hearing about the "individual mandate" was just plain maddening.
 
The argument is about whether the government can force the people to buy health coverage.
 
Now, the thought of the government forcing any of us to do anything makes even me chafe.
 
But conservatives and anti-Obamaists have taken this to a new level. They believe the Affordable Care Act's use of the Commerce Clause is an affront to liberty.
 
The justices this week seemed willing to play along with the "And then what's next..." scenario.
 
If Congress can make us buy health care, then it can make us eat broccoli, suggested Justice Scalia.
 
Chief Justice Roberts was concerned about making us buy cell phones for emergency services.
 
And Justice Alito was hung up about burial insurance.
 
They all missed the point. U.S. Solicitor General Donald B. Verrilli, Jr., said the Commerce Clause applies because "health insurance [is] a means of paying for health care...and broccoli is not the means of paying for anything else."
 
(Although I'd like to see someone pay for a proctology exam with some broccoli.)
 
Verrilli said the government is merely regulating a market that already exists. Everyone needs some kind of care.
 
And when people don't have care, the costs rise prohibitively and get subsidized by those of us who do pay for health care.
 
Those who use the phrase "Obamacare" as an epithet have their ire misplaced. They should be angry at all those who are driving the cost up, those freeloaders who dare get sick without health care.
 
Michelle Bachmann and her Tea Party ilk are so out to get Obama, they've been blinded. If they need a reference for their hate, they should see these "freeloaders" as the health care version of the "undocumented."
 
Of course, it's a different brand of "undocumented," as unfortunately, immigrants without papers still aren't covered by the ACA.
 
But up to 38 million new people are covered. Since the Affordable Care Act was passed, 2.5 million young adults--including 97,000 Asian Americans--have been able to remain on their parents' insurance plans. The Asian & Pacific Islander American Health Forum says 2.7 million Asian Americans have received free preventive services, including cancer screenings.
 
And we're not yet to 2014 when the plan fully kicks in.
 
But it can all get gutted by the court, and based on ideology alone, it seems that Justices Scalia, Alito, Roberts, and Thomas are more than willing to do so.
 
They're offset by Justices Breyer, Ginsburg, Kagan, and Sotomayor, whose questions seem to indicate support for the plan.
 
Breyer, a Lowell High grad, was first to defend, especially on the issue if Congress could create commerce where previously none existed.
 
"Well, yes, I thought the answer to that was, since McCulloch versus Maryland, when the Court said Congress could create the Bank of the United States which did not previously exist, which job was to create commerce that did not previously exist, since that time the answer has been yes," Breyer said.
 
"[C]an the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, CHIP Burial, ERISA Burial, and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn't the answer be, yes, of course, they could."
 
Ah, yes, but we don't have five Breyers.  
 
The final tally isn't expected until June, but I see it deadlocked at 4-4,  with Kennedy still wondering about being forced to buy health care.
 
Said Kennedy: "[T]he reason this 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. And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way."
 
The government's lawyer objected, saying that "virtually everybody participates" in the health care market. The government is merely regulating their participation.
 
But it all seems to hinge on Kennedy. And from Day 2 of the proceedings, he sounds like he's willing to let the blind man walk in front of the car.

***
Updates at www.amok.com. Follow Emil on Twitter @emilamok.
 


Posted by:Emil Guillermo

The views expressed in this blog do not necessarily represent the views or policies of AALDEF.

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