‘Well, I can’t imagine that that — that the Commerce Clause would — would forbid Congress from taking into account this deeply embedded social norm.”
This was Solicitor General Donald Verrilli on Day Two of the great Obamacare case. At issue was Affordable Care Act’s most controversial aspect: the “individual mandate” — the requirement that Americans purchase health insurance as a condition of living in their country. The SG was being pummeled by Justice Antonin Scalia.
Pummeling was the order of the day for Verrilli. From the moment he rose to deliver the most important argument of his professional life, he seemed tongue-tied; he could barely get through “May it please the Court” without sputtering. It is hard, even for a lawyer as fine as Verrilli, to defend the indefensible. Yet, as he argued with Scalia, the SG grabbed on to a hidden truth: He and his fellow progressives are already way, way ahead. They may not win this skirmish over the individual mandate. But there is the battle, and then there is the war. For statism, the war is still going very well.
The “deeply embedded social norm” to which the SG referred was another government mandate: The 1986 law
demanding that hospitals, without compensation, treat emergency patients who lack insurance or the capacity to pay. It was a telling moment: The hullaballoo over the individual mandate is a case of noticing the barn door open about a quarter-century after the horse has galloped away.
So who are “the uninsured”? They sort into two categories, alternatively emphasized, depending on what the Left is trying to accomplish that day. If the aim is to achieve “social justice” (i.e., the redistribution of wealth from the producers to the takers), they are “the poor.” If the aim is to manufacture social injustice, they are the “free riders” — “free,” once our coveted condition, is now an epithet. The “free riders” rationally choose not to insure themselves, figuring that they are young, healthy, not likely to need much medical attention, and able to get treatment in the event of an emergency.
There are no free lunches, though. The central planners want to co-opt the aged and the poor, but they cannot afford to seduce them with “free” health care unless they soak the free riders. Meantime, hospitals cannot afford to treat and bear the malpractice risks of non-paying patients unless they recoup by over-charging the paying customers. Since people generally pay by insurance, this drives up the private insurers’ costs. That, in turn, drives up the costs of premiums, which responsible people choose to pay in order to insure themselves against the skyrocketing prices bred by this vicious cycle of coercion.
Thus, Verrilli contended, Congress can force free riders either to buy government-approved insurance or to pony up a government-dictated fine. As he put it, you must “pay for what you get” because you are “getting the health care service anyway as a result of the social norms . . . to which we’ve obligated ourselves so that people get health care.”
Well, no, Justice Scalia countered. There’s a much easier answer: “Don’t obligate yourself” in the first place. After all, if you didn’t coerce the hospitals and the insurers, you wouldn’t need to coerce the citizens.
Heaven forefend! Why, government coercion is the beating heart of our “free” society. It is — all together now — a “deeply embedded social norm.”