Two years after the Patient Protection and Affordable Care Act became law—and two years before many of its provisions are scheduled to go into effect—the Obama administration’s most important achievement faces an uncertain prognosis.
The Republican presidential candidates have vowed to repeal the law, though Mitt Romney, the GOP’s presumed nominee, has had trouble dispelling persistent rumors that “Obamacare” is the offspring of Romneycare, the state health-care reform he backed as governor of Massachusetts. To avoid the embarrassment of acknowledging yet another politically expedient change of mind, Romney has made much of minor differences between the two laws. He has also claimed that, whatever the similarities, a system that works for states may not work for the federal government. But to most opponents of the Affordable Care Act, and to nearly all its supporters, this looks like a distinction without a difference. If, as some conservatives have claimed, it is tyrannical to require people to buy health insurance, why should it matter whether it’s a state or federal requirement?
This is one of the questions now before the Supreme Court, which may overturn the Affordable Care Act before the Republicans have a chance to repeal it. In the last week of March, the Court heard oral arguments in a case challenging the constitutionality of the law’s minimum-coverage provision, also known as the individual mandate. (The Court will issue its ruling in June.) Representing the twenty-six state attorneys general who claim the law is a violation of states rights, Paul Clement described the mandate as a radical departure and a dangerous precedent. Never before had the federal government made Americans buy something from a private company. And if it could make people buy health insurance, what couldn’t it make them buy? The High Court’s conservative Justices seemed impressed with this line of reasoning. They asked the lawyer in charge of defending the mandate, Solicitor General Donald Verrilli Jr., what would keep the government from requiring everyone to buy cell phones or broccoli (like health care, good for you) or burial services (death, like sickness, being unavoidable). In opposing the law, Clement argued that the Constitution’s Commerce Clause allows the government to regulate only economic activity, not inactivity. That means it can set the terms for participation in the health-insurance market but not force people to participate.
In fact, this wouldn’t be the first time the federal government has required people to buy something. It happened not long after the Constitution was ratified. The Militia Act of 1792, signed by George Washington himself, required every “free able-bodied white male citizen” between the ages of eighteen and forty-five to “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack,” among other equipment. So the insurance mandate isn’t quite as novel as its opponents have suggested.
Still, the mandate would be both necessary and proper—the relevant constitutional criteria—even if it were unique. For the health-care market is not like any other market, as the solicitor general made clear. In no other market are providers of a service required to offer it to anyone who needs it, whether or not the person can afford it. Since 1986, federal law has required that hospitals take care of anyone who comes to them needing emergency treatment, whether or not he or she has insurance or can pay for treatment out of pocket. This is, as Verrilli put it, the “result of the social norms to which we’ve obligated ourselves.” To which Justice Antonin Scalia (a Catholic) replied, “Well, don’t obligate yourself to that.” The implication of Scalia’s remark was chillingly clear: if victims of car accidents arrive at the emergency room without insurance, hospitals must be allowed to let them die on the curb, because that’s what the founding fathers would have wanted.
That seems doubtful. It is certainly not what most Americans want now, or what human decency demands. Most people want the sick and injured to get as much care as they need, and most people want them to help pay for their own treatment if they can. This is precisely what the Affordable Care Act was designed to make happen. By requiring insurance companies to cover those with “pre-existing conditions,” it guarantees that the people who most need access to health care will have it. And by requiring everyone above a certain income level to buy insurance or pay a penalty, the law prevents free-riding, which drives up insurance premiums and taxpayer-funded Medicare and Medicaid payments. While not everyone may want to buy health insurance, everyone with a pulse will eventually need health care. The only questions are when and how much. Because we can’t answer those questions in advance, we need a way to distribute the risk of serious illness as broadly, and therefore efficiently, as possible. Hence the mandate. There’s nothing tyrannical about it, and even if there were, voters wouldn’t need the Supreme Court to provide a cure. The Constitution itself insures an adequate remedy for tyranny. It’s called the ballot box.
Related: Bench Players, by E. J. Dionne Jr.