Over at my Forbes blog, I’ve posted my thoughts on Tuesday’s pivotal day at the Supreme Court:
“I walked out of that hearing feeling encouraged,” Randy Barnett told me as he stepped out of his Constitutional Law classroom at Georgetown. “If I had walked out of that court knowing the outcome, it would have meant that we lost.” That’s as useful an observation as any, coming as it does from the man who is most associated with the legal principle behind the Constitutional challenge of the Affordable Care Act’s individual mandate, the law’s provision that requires every American to purchase health insurance. However, as I will explain in this article, the game isn’t over. Not by a long shot…
[Justice Kennedy, late in the session] said, “The government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it’s true that if most questions in life are matters of degree, in the insurance and health care world . . . the young person who is uninsured is uniquely, proximately, very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in this case.” (Emphasis added.)
That is the hope that mandate advocates can cling to. Does Kennedy actually buy the argument that health care is constitutionally unique?
The likely answer is no. If Kennedy was really concerned about this problem, it’s much more likely that he would have brought it up early on, and raised it both with the Obama Administration’s lawyer, Verrilli, and the mandate’s opponents, represented by Paul Clement and Michael Carvin. He did not. But when it comes to the Supreme Court’s swing vote, we can never be sure.
But there’s another ray of hope for allies of Obamacare. Chief Justice Roberts, a conservative, was unusually laid back on Tuesday. If you didn’t know what his philosophy was going in, you wouldn’t necessarily deduce that he was an anti-mandate partisan. But it would be truly shocking if Kennedy voted against the mandate, while Roberts voted in favor of it.
I asked Karen Harned, head of the National Federation of Independent Business, for her thoughts. NFIB is one of the lead plaintiffs in the case. But Harned refused to predict the outcome, and seemed convinced that it’s still 50-50. “Kennedy was really tough on the government,” she said, but allowed that he also raised concerns about the uniqueness of health care.
I have an editorial in USA Today today, in which I point out that the individual mandate isn’t about “personal responsibility” but rather governmental irresponsibility:
Most people who oppose the Affordable Care Act’s individual mandate do so because it’s such a grave affront to our constitutional tradition of limited government.
After all, a Congress that can force you to buy health insurance can also force you to buy solar panels, newspaper subscriptions and gym memberships.
But let’s be real. The reason the ACA forces every American to buy health insurance is that the law makes it a raw deal for people to buy it on their own.
Of the 50 million people in America without health insurance, according to the U.S. Census, 55% — nearly 28 million — are under the age of 35. Thanks to decades of unwise government subsidies, regulations and mandates, these young Americans are forced to pay far more for health insurance than they consume in health care.
ObamaCare doubles down on this failed system in numerous ways, most notably by forcing insurers to use “community rating” to charge similar premiums to the young and the middle-aged, despite the fact that the middle-aged spend much more on health care.
The law forces people to buy insurance for things that some people will never consume, such as maternity services, and expenses that are entirely predictable, such as routine checkups and preventive care.
In other words, instead of making health insurance cheaper so that more young people can afford it, the ACA makes insurance more expensive, and then compensates for this fact with the individual mandate. The law uses the mandate to force young people to buy even costlier insurance that is even more out of whack with their actual health needs.
The mandate’s proponents call it an “individual responsibility” requirement. But its real aim is to force young people to cover up for irresponsible government policies: laws, such as ObamaCare, that make insurance too expensive.
I’ll be hosting a live blog for Day Three of oral arguments over at Critical Condition. Please join us.
— Avik Roy is a senior fellow at the Manhattan Institute and the author of The Apothecary, the Forbes blog on health-care and entitlement reform. You can follow him on Twitter at @aviksaroy.