Why Health Reform is Safe, and the Caveman Argument Against the Individual Mandate

The big story last week, on the political front, has been the Supreme Court's scheduling of oral arguments on the legal challenges to the health care reform law the President signed two years ago. It's an unnerving case, to be sure, as people across the political pages try to read tea-leaves to surmise the fate of this incredible reform. The far Right is aware that ObamaCare, should all elements of it be allowed to go into effect in 2014, it will be as popular as Medicare and any attempt to screw with it will result in the reddest Congressional districts turning blue. They have spent not only time to challenge the law in the courts, but they have also outspent supporters on a 3:1 basis on spreading propaganda trashing the law.

I am not a lawyer. But for what it's worth, I do think there is something to be taken from the precise cases that the Supreme Court is hearing this week. The Washington Post has a helpful graphic showing the cases SCOTUS is actually deciding in order to determine the fate of health reform.

Remember that the Supreme Court is the final appallette court, and as such, it is deciding appeals from decisions made by lower courts. On the most important question, the individual mandate, it is thus rather remarkable to note whose appeal the court is hearing. The government's. The lower appeals court agreed with a district court decision that the individual mandate is unconstitutional. The government, namely the Department of Health and Human Services, appealed the ruling from a lower court dismissing the Constitutionality of the individual mandate. In other words, despite what you've heard, in technical terms, the Court is actually not hearing a challenge to ObamaCare. It is hearing an appeal by the government challenging the validity of the ruling of a lower court with regard to the individual mandate. The court is not hearing an appeal by the opponents of the law from a court which has upheld the constitutionality of the individual mandate.

Does this make a difference, given that the Court is still hearing arguments on three questions - namely the individual mandate itself, whether it is severable from the rest of the law (and thus the rest could stand should the mandate be found unconstitutional) and whether any challenge can even be brought against the individual mandate given that it is not in force yet and no fines on it has yet been collected? I think it does make a difference. That the consolidation is happening under an appeal by the HHS would indicate that SCOTUS sees at least a potential that the lower court ruling, invalidating the mandate, was in error.

That is probably why former clerks of the justices on the bench believe that it is likely that the Court will uphold the Constitutionality of the individual mandate. Insiders don't think it will be even close:
“I don’t think this case will be nearly as close a case as conventional wisdom now has it,” one respondent noted in an open-ended comment. “I think the Court will uphold the statute by a lopsided majority.
This is probably correct. On a legal basis, there is no rhyme or reason - except the idea that the Supreme Court can do whatever it wants - why it is not constitutional. First, it does not apply to anyone who cannot find insurance for less than 8% of their income, and the threshold is even lower for people with limited income. This clears the undue burdens test. Second, no one is required to carry insurance; if they do not, they simply pay a fine to ensure that when they require health care, those who have insurance (and taxpayers) are not on the hook for it. This is the pro-active legal argument that says that Congress indeed has the power to protect each citizen from financial harm done by the actions of others. If others not buying insurance adds to your insurance premiums (and it does), Congress has the power to remedy that.

Third, the argument that Congress "doesn't have the power to mandate what we can and cannot buy" is patently absurd. Congress already mandates plenty of things you cannot buy. Ever heard of the Controlled Substance Act? There are plenty of mandates from Congress that people have to pay for as a condition of everyday living. That Congress mandates clean water means you can't get cheaper dirty water. Clean Air Act makes you smog check your vehicle. Food safety laws make you spend a premium on safer foods when you could otherwise buy cheaper, spoiled food. Congress regulates the qualities of things you buy and sell in everyday life, even if that costs you more than if it hadn't regulated it. Because Congress has an imperative to  provide for the general welfare.

Sure, but isn't the health care mandate the only one that forces you into commerce even if you don't want to be in it? I mean, Congress doesn't force you to buy food at a grocery store. Congress doesn't force you to own a car. Congress doesn't force you to have running water at your place of living. Yes, I suppose, you could avoid all of the individual costs of Congressional mandates if you lived in a cave, bathed in the river and hunted and gathered your own food. But I'm pretty sure being a cave man is also an excellent way to not be subject to the health care mandate. I am pretty sure the IRS won't track you down in your cave and hand you a bill for the fine.

My opinion on this legal challenge - with the important caveat that I am not a lawyer - hasn't changed since the passage of the law. It was always going to end up in the Supreme Court. And the Supreme Court is more than likely to uphold the law, including the individual mandate. The challenge was always more political in nature than legal, and unless 5 justices decide to be blatantly political about it, the court will not strike it down.

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