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Saturday, October 22, 2016

Health Care Reform And The Supreme Court: Politics Over Constitutionality

The Obama administration’s neglect did not cause this constitutional challenge to the individual mandate. Republican strategy did.

On the eve of the Supreme Court’s decision, after numerous lower court opinions and treacherous questioning by conservative justices, the overwhelming consensus in the legal community remains that the requirement in the Affordable Care Act to buy health insurance is unquestionably constitutional. As recently as mid-June, Bloomberg News asked law professors at the nation’s top law schools whether they thought there was any question that the Affordable Care Act’s individual mandate requiring the purchase of health insurance was constitutional; 19 of the 21 who responded replied that it was. They were only confirming the opinions of two very conservative appeals court judges, who upheld the provision last year.

But the widespread view that the only reason we have a question before the Supreme Court is their receptivity to right-wing political manipulation of the law was not the story told by the New York Times on Sunday, under the headline, “Supporters Slow to Grasp Health Law’s Legal Risks.” The Times’s Peter Baker faulted the Obama administration and Congressional Democrats for being unprepared for the legal challenge.

Some would view the fact that the Court is seriously debating a question that is so far out of the political mainstream, even among the most respected conservative jurists, as a testament to the groundbreaking work of a small set of conservative lawyers to change jurisprudence. They would compare their work to the careful strategy that led to decisions like the Warren Court’s Brown v. Board of Education. I am not so generous. The legal arguments against the individual mandate remain flimsy and there is no comparable history of carefully plotted legal strategy. What has become more solid is the ground that the arguments are being made on, a Supreme Court majority whose magnet is not the Constitution or precedents, but the U.S. Chamber of Commerce.

In drafting what became The Patient Protection and Affordable Care Act, Democrats in Congress and the White House had myriad complex policy and political factors to juggle. The implication that they should have added in the minuscule chance that the mandate would be successfully challenged on its constitutionality is as silly as the opponents’ legal arguments.

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  • By all means click on Mr. Klein’s piece for futher clarification of this phenomenon. Another good source is from the Heritiage Lectures number 218. Stuart M. Butler, Ph.D piece ‘Assuring Affordable Health Care of All Americans’ is very informative.

    Here is a sample from Oct. 2, 1989. ‘Neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement…Society does feel a moral obligation insure that its citizens do not suffer from the unavailability of health care. But on the other hand, each household has the obligation, to the extent it is able, to avoid placing demands on society by protecting itself…A MANDATE on households certainly would force those with adequate means to obtain insurance protection.’

    Also from Heritage Foundation on Mar. 5, 1992. ‘Step #2, Require all houseolds to purchase at least a basic package of insurance, unless they are covered by Medicaid, Medicare, or other ‘government’ health programs. All Heads of households would be required by law to obtain at least a basic health plan specified by CONGRESS. The private insurance market would be reformed to make a standard basic package available to all at an acceptable price… Employers would be required to make a payroll deduction each pay period, at the direction of the employee, and send the amount to the plan of the employee’s choice.’

    It is clear that at one time, but obviously no longer, conservative thinking was based upon the concept of personal responsibility. Also they believed that Congress should spell out that basic health plan. I wonder what happened? Could it be simply that when the Democratic Party agreed, that the GOP had to reflect upon their own ideas and walk away?