Columns » Ernest Dumas

Supreme shame



If the U.S. Supreme Court's oral arguments in the health-insurance suit are a guide, the court this spring will add another case to the pantheon of shame that enshrines Dred Scott, Plessy, Buck, Korematsu, Bush v. Gore and Citizens United.

You know those cases. Dred Scott said the descendants of slaves could never be citizens or enjoy the legal protections afforded other Americans. Plessy said racial apartheid and equality were harmonious principles. Buck stood for the premise that the government did not violate handicapped women's rights when it forcibly sterilized them so that they could never spawn disabled children. Korematsu was the 1944 decision in which the court said it was fine to strip 110,000 Americans of Japanese descent of their property and imprison them without cause or suspicion. Bush v. Gore and Citizens United stood for — well, you know those cases too well.

Those two and the impending 5-4 decision against what Republicans call "Obamacare" all run along the same line, where the court decides not just to declare what the Constitution means but to enter the political lists to decide elections for the right party and finally to fix public policy in the justices' direction, a domain until now reserved to the other branches.

So if the questions and observations of four of the five Republican justices reflect their intentions, the Supreme Court will vote 5 to 4 to declare the United States to be the only country among all the developed nations of the earth, and a few of the undeveloped ones, that is barred by its own constitution from ever giving health protection to all its people — unless, of course, it chooses someday to follow the socialist model.

That would be the result if the court concluded it is an unconstitutional exercise of congressional power to require that most uninsured people or their employers to either buy health insurance from a company or else pay a tax to the federal government to help pay for their treatment.

There are two ways to achieve universal coverage, which was an idea embraced by 10 of the 17 20th century presidents, including four Republicans. One way is the single-payer government system, Medicare for everyone, which Republicans now call socialism, and the other was the Republican idea of mandating everyone to obtain insurance, which was first tendered by Nixon and Ford in the 1970s and embraced in the 1990s by Republican congressional leaders, including Newt Gingrich. When Barack Obama was persuaded in 2009 that the Republican mandate was the only politically viable way, he and the Democratic Congress adopted it, which caused the Republicans to repudiate it. Do you imagine that even one justice would vote to strike down the insurance mandate if a Republican Congress and president had fathered it?

The three days of hearings by the justices were unprecedented. The four questioning Republicans wondered aloud about how the insurance companies would make sufficient profits if the court struck down the mandate and allowed the rest of Obamacare to survive. Issues about how well provisions of a law might work have never been the province of the courts — only whether they abrade the Constitution.

Whether the Affordable Care Act is good law is not a matter for the courts but for Congress and the president, which are obliged by the Constitution to resolve hard issues the best they can on the messy playing field of politics and compromise. The Affordable Care Act is not anyone's idea of the best way to protect the 40 million uninsured people, but it is what could get a supermajority in the Senate.

Justice Anthony Kennedy, who will supply the pivotal vote, seemed to suggest that the right way was a single-payer system like Medicare, so that the government's power to make everyone pay would be unquestioned. He was right; it was the better way. But the economic power of the insurance and pharmaceutical industries ended that possibility long ago.

The justices' questions reached for absurdity. The case was supposed to be premised on the technical question of whether the commerce clause envisioned the federal government regulating health-care transactions. But that matter was settled, in the legislature and the courts, no later than in 1965, when Medicare and the modern Medicaid were established, but actually long before that with the enactment of old age, survivors and disability insurance, which was required of everyone. Congress has acted numerous times to mandate hospitals and other providers, insurance carriers and, yes, even individuals to meet certain requirements. Only eight years ago, a Republican Congress and president changed the Medicare law so that elderly and disabled people who need help with the prescriptions have to buy drug insurance from insurance companies.

The nadir of the hearing came with justices raising the old bugbear of absurd possibilities. If the government can require people to insure themselves, couldn't it make them eat broccoli?

The next thing you know the government could make people buy automobile liability insurance or obtain licenses to hunt or fish; it could make employers buy unemployment insurance, make hospitals give lifesaving care to indigents or make factories stop polluting the air and water. Where it all could end, God knows.

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