By Tim Sloan
The fate of Obamas health-care law may rest with one man.
As of now
Supreme Court Justice Anthony Kennedy is the most pivotal health-care policy thinker in America. Following district court Judge Roger Vinsons Jan. 31 ruling that declared President Obamas health-care-reform law unconstitutional the plan has a solid 22 record in the federal courts: two district judges have ruled for it and two against. The odds are very good that it will eventually wind up in the Supreme Court. And once it gets there odds are the bills fate will come down to one person: Justice Kennedy.
None of that is certain of course. Perhaps the issue will be resolved at the circuit-court level. Perhaps Chief Justice John Roberts will side with the administration and Kennedy wont be the swing vote. Or perhaps an asteroid will hit the earth rendering tweaks to the U.S. health-care system moot.
But probably not. Health-care reform is likely to come down to Kennedyin particular his views on the so-called individual mandate which requires all those who can afford it to purchase health insurance. And heres the irony of the whole thing: the individual mandate was a policy that Democrats adopted precisely in order to attract moderate Republicans like well Anthony Kennedy. If it gets rejected whats likely to come next is going to be a whole lot less congenial to conservatives.
Health care is unlike other commodities" Walter Dellinger who served as solicitor general to Bill Clinton told the Senate Judiciary Committee last week. There is nothing else in our economy where an individual who has made no preparation can go in and get $1 million of goods and services passed on to them at taxpayer expense." That means it struggles with free riders: people who would have society pay for their care rather than pay for it themselves.
One solution is single-payer health care in which everyone pays taxes and everyone gets government-provided health-care insurance. But conservatives arent big fans of replacing private industries with government monopolies. So in 1991 a group of conservative academics proposed an alternative: the individual mandate which says that everyone who can afford health-care insurance has to buy it. That means no free riders no healthy people waiting until they get sick to buy insurance or stick the rest of us with the costs of their care. We did it because we were concerned about the specter of single-payer insurance which isnt market-oriented and we didnt think was a good idea" says Wharton economist Mark Pauly one of the ideas authors.
For the next 18 years or so thats the role the individual mandate played. It was what Republicans proposed as a smaller-government alternative to the health-care plans favored by liberals. In November 1993 Sen. John Chafee a Republican from Rhode Island proposed the Health Equity and Access Reform Today Act. The legislation became the GOPs semiofficial response to President Bill Clintons health-care bill and it was eventually co-sponsored by such influential Republicans as Bob Dole Richard Lugar Chuck Grassley and Orrin Hatch. The other major Republican alternative the Consumer Choice Health Security Act included Jesse Helms and Trent Lott as cosponsors and also included an individual mandate.
Neither bill went anywhere but they cemented the individual mandate as a central feature of Republican health-care thinking. In Massachusetts Mitt Romneys 2005 health-care plan used an individual mandate. In the Senate Utah Republican Bob Bennett joined with Oregon Democrat Ron Wyden to offer the Healthy Americans Act which included an individual mandate and attracted more bipartisan support than any other universal-coverage bill in history. In the 2008 Democratic presidential campaign Barack Obama actually opposed the individual mandatethough he reversed himself after the election once his policy advisers had convinced him of the policys worth. As recently as June 2009 Grassley was telling Fox News that there was a bipartisan consensus" in favor of the individual mandate. Thats individual responsibility" he said and even Republicans believe in individual responsibility."
But when Republicans failed to stop Obamas health-care law in Congress they decided to try convincing the courts that the individual mandate represented something new and unprecedented: a regulation of economic inactivity. The Constitutions Commerce Clause gives Congress authority to regulate your actions when youre engaged in commerce argue these conservatives but not when youre not engaged in commercelike when youre choosing not to buy something. Someone deciding not to buy something is almost by definition not engaged in commerce the argument goes.
That strikes many health-care policy experts as an oddly narrow understanding of what the individual mandate does in the context of the free-rider dilemma. As 38 of themincluding a few Nobel Prize winnerswrote in a brief to the court There is no such thing as inactivity or non-participation in the health care market." Eventually we all end up as participants in the health-care system whether we want to or not. The question is simply whether we participate responsibly or irresponsiblywhether we pay for ourselves or have others pay for us.
It will likely fall to Kennedy to resolve this dispute. But some court watchers say his swing vote could produce a dramatic resultregardless of which way he votes. As Jeff Toobin author of The Nine: Inside the Secret World of the Supreme Court told me He swings for the fences." The bill is likely to be totally fineor Kennedy is likely to push back broadly against the theory of federal power underlying it.
Oddly enough Kennedy the presumed moderate on the court could usher in an age of immoderation. The individual mandate in the Democrats health-care law is an example of policy convergence in a period of intense polarization: despite the vitriol the two parties are closer together on policy questions than theyve been in the past. Democrats now often attempt to achieve through market mechanisms what they used to seek through government takeovers. Their adoption of a health-care idea that conservatives supported during most of the last 20 years is only the latest example.
But now thats exactly whats getting them into trouble. And if Kennedy moves to broadly strike down the approach the health-care debate will turn back to the big-government solutions that conservatives spent so long trying to persuade Democrats to give up.
As Harvard law professor Charles Fried who served as Reagans solicitor general told the Senate Judiciary Committee no one could have argued that a government-run single-payer system would be unconstitutional. Medicare proved that. (Fried by the way believes the individual mandate is clearly constitutional.") So thats one point in big governments favor.
The other reason is that expanding public programs unlike regulating private actors can be passed through the reconciliation process"which means it cant be filibustered. After watching the GOP turn against policy ideas so many of its members had previously supported Democrats are pretty clear about the fact that bipartisanship on big issues like health care is impossible in our polarized political system. So theyll stick to policies that they can get done with 51 votes as opposed to policies that need 60. The age of immoderation will have begun.
