‘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.”
In the abstract, Verrilli’s case on the individual mandate is specious. The Commerce Clause empowers Congress to regulate interstate commerce that free people choose to engage in. It does not authorize Congress to create commerce by compulsion, to coerce Americans into engaging in individual commercial transactions that — thanks to New Deal alchemy — are feverishly imagined to jolt interstate markets, activating the hair-trigger of federal regulation. This is why the SG labored mightily to claim that the mandate does not so much fabricate new commerce as regulate ongoing commerce. Bootstrapping mandates to mandates, Verrilli theorized that we are all in the health-care market already, whether we realize it or not, because accident or disease could strike at any moment — and when it does the “free” emergency room is here for us.
Still, we don’t live in abstractions. Ours is a landscape of statist excess, enabled by 80 years of Supreme Court jurisprudence. Verrilli was thus at his strongest talking not about the Commerce Clause per se but about its unrecognizable remains. Just look at the “reforms” already enacted, the SG urged: not just the mandate that hospitals must treat ER patients but mandates that force insurers to cover people despite “preexisting conditions” and mandates that “require ‘guaranteed issue’ and ‘community rating’” — euphemisms for prohibitions that bar insurers, when setting premiums, from accounting for factors, such as age, sex, and health status, that common sense says are highly significant to the risk being assumed.
Then Verrilli dropped the hammer: For all their caterwauling about the individual mandate, the states that brought the Obamacare suit did not, and do not, dispute Congress’s Commerce Clause power to impose these other long-established health-care “reforms.”
The premise of the states’ challenge to Obamacare is that, in taking direct aim on the whole citizenry, the individual mandate crosses a new threshold. The claim is not without merit, and it seemed to resonate with several of the justices. Addressing Verrilli, Justice Anthony Kennedy, the presumptive swing vote, admonished, “You are changing the relation of the individual to the government in . . . a unique way.”
But how unique, really, is the Obamacare mandate? Assuming we are still a free society, of course it is offensive for government to coerce citizens into buying health insurance. But is it not equally offensive for government to coerce private hospitals to treat patients for free? For government to coerce private insurers regarding whom they must cover and what they must cover them for? To dictate that, in making these determinations and calculating their risks, insurers must ignore palpably pertinent information? In the law, a contract is a voluntary bargain. What we’ve tolerated for a very long time, however, are adhesive arrangements of involuntary servitude. The law’s usual word for that is extortion.
And health-care extortion, by the way, is not Obama’s doing. It is our longstanding, bipartisan, Big Government condition. To take just one example, here is an excerpt from the vaunted “Pledge to America” that House Republican leaders touted during the 2010 campaign:
Ensure Access For Patients With Pre-Existing Conditions: Health care should be accessible for all, regardless of pre-existing conditions or past illnesses. We will expand state high-risk pools, reinsurance programs and reduce the cost of coverage. We will make it illegal for an insurance company to deny coverage to someone with prior coverage on the basis of a pre-existing condition, eliminate annual and lifetime spending caps, and prevent insurers from dropping your coverage just because you get sick. We will incentivize states to develop innovative programs that lower premiums and reduce the number of uninsured Americans.
No, President Obama did not invent this stuff. He is simply fast-forwarding to the next logical steps.
Health care, like most things, should not be a federal concern at all. If people at the state or local level think everyone should be entitled to emergency medical care, that’s fine — they ought to raise taxes and pay the hospitals to provide it. If they think sick or high-risk patients who can’t get affordable private medical insurance ought to have their treatment paid for nonetheless, they ought to raise taxes to pay for that, too. It is great to be noble, but it’s not noble to throw around other people’s money. Your choices ought to be your costs. And that goes for insurance-company executives, too: If they take premium payments, then fraudulently wriggle out of the consequent obligations, they ought to be prosecuted, sued for damages, and put out of business. The state’s legitimate role is limited, but it is essential.
That is how a sensible, private, cost-effective system would work. To the contrary, the ruling class of both parties embraces a central planning scheme of “deeply imbedded social norms”: Politician A and lobbyist B get together to decide what service-provider C is going to be forced to do for interest group D. Adam Smith, Frederick von Hayek, and Milton Friedman told us why this never works, but by now we should know from our own experience. Coercion begets coercion: If you’re going to force the hospitals, then you have to force the insurers; if you’re going to force the insurers, then you have to force the citizens.
Donald Verrilli had a tough go of it at the high court this week. The individual mandate may be on the ropes, as, perhaps, is the whole 2,700-page Obamacare monstrosity — although I wouldn’t bet on it. But if we were in the wagering business, what do you figure is more likely: The statists regroup and put us on a surer legal path to a “single-payer” system of socialized medicine; or Republicans seize the moment, roll back more noxious federal mandates, and forge a path back to free-market health care? I’m not sure how solicitor general Verrilli will grade out come Judgment Day in early July, but, alas, I like his team’s chances over the long haul.
— Andrew C. McCarthy is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.