Monday, April 2, 2012

'They want it': The Obamacare defense that wasn't

Liberals’ stomachs have been collectively churning for a week, ever since Solicitor General Donald Verrilli failed Tuesday to make a credible case for the constitutionality of Obamacare’s individual mandate. Given that it’s such an easy case to make, it’s a matter of course that opinion pages and blogs have recently been littered with commentators’ descriptions of the reasoning that Verrelli should have used. But one key argument I haven’t seen gives ample cause for hope that universal health care is not doomed, as some experts suggest.
            To begin, the Supreme Court justices seem to take for granted that dealing with the problem of forty million plus uninsured Americans is well within Congress’s purview. Moreover, the logic necessitating (as in ‘Necessary and Proper’) the individual mandate—which offsets the costs incurred by insurance companies covering more sick people—likewise was not challenged.
            But admittedly, forcing someone to buy a product is a seemingly extraordinary step, and it’s perfectly reasonable that Justices Roberts and Kennedy would like an assurance that there is some limiting principle in what Congress can do to regulate ‘pre-existing’ markets. And so came the questions about Congress’s mandating the purchase of cell phones, broccoli, gym memberships, and so on. The justices justifiably want to know why forcing someone to purchase health insurance is unique and that some limits remain on Congress’s authority.
            Verrilli could have provided a clear and compelling distinction by correcting the false assertion made by Paul Clement, who argued in favor of striking down the mandate—and the entire Affordable Care Act. Clement told the justices that the mandate “forces somebody to purchase an insurance policy whether they want it or not.” But that’s not quite true.
            Everyone wants this product—at least in some sense. That’s the difference that makes health insurance exceptional. They may not want to pay for insurance now, but they do want insurance. For example, they want the ‘insurance’ of knowing that if an unpredictable accident happens, they will receive life-saving medical care. And they have it—only others may pay for it.
As further proof of a universal desire for coverage, take a simple hypothetical situation: On Tuesday an uninsured man notices symptoms that likely indicate the presence of a cancer that runs in his family. Does he simply shrug and continue to go uninsured? Or does he enroll tomorrow and claim that he has no disqualifying pre-existing conditions? Of course he’ll do the latter. So when did he experience the change of mind from not wanting insurance to wanting it? Well, there was no change of mind. Monday, he wanted insurance just as badly as on Tuesday, he just bet that he wouldn’t need it. So why should he pay? But a willingness to pay premiums only on the condition that you know you will need coverage is not how insurance works. The desire to pay for insurance for one’s entire adult life is certainly not universal; but a desire to be covered when trouble comes is.
So health insurance is fundamentally different than the silly, unrealistic hypothetical mandates proposed by the justices. People don’t buy broccoli because they don’t want broccoli. They don’t buy a gym membership because they don’t want a gym membership. They don’t buy a cell phone because they don’t want a cell phone. But they don’t buy health insurance because, though they want it, they don’t want to pay for it now.
As bad as the optics of this week’s oral arguments were, if at least five highly intelligent justices can identify this rather obvious distinction, the health care law will stand.

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