If the Supreme Court upholds the health law’s mandatory
insurance, the ruling will likely turn on a lie rather than
constitutional principle.
The Obama administration’s legal case doesn’t just stretch the
meaning of the Commerce Clause. It also stretches the truth about
healthcare consumption. Sadly, the oral arguments suggest that
four, possibly five of the Justices, actually believe the
administration’s hocus pocus claims about who consumes healthcare.
.
During the oral argument on March 27th, Solicitor General Donald
B. Verrilli told the packed courtroom that all Americans
are engaged in healthcare commerce, so Congress can use its
Commerce Power to compel them to pay with insurance. Verrilli
boldly declared that “this is not a purchase mandate.” He argued
that the law merely requires people to use insurance to pay for the
healthcare they are already consuming or inevitably will
consume.
The premise that all Americans inevitably consume health care is
almost true for seniors, but they are not subject to the
mandate.
For Americans younger than 65, the premise is false. According
to yearly reports from the federal Agency for Healthcare Research
and Quality, 50% of Americans are non-consumers or near
non-consumers.
They account for 2.9% of the nation’s health expenditures. Their
mean annual expenditure is a tiny $238 a year, indicating that many
spend $0 on healthcare. Yet the individual mandate would compel
them to sign up for an estimated $5,000 annual health plan.
Are these non-consumers and near non-consumers foregoing
healthcare they need ? Generally no, because 95.3% consider
themselves to be in excellent, very good or good health. Less than
half a percent reported being in poor health. The same people who
are non-consumers one year tend to be non-consumers the next,
because they’re healthy.
It’s one thing to regulate commerce. But how can the Obama
administration stretch the Commerce power so far that it reaches
even people who don’t consume healthcare? Where is the connection
with commerce? Justice Kennedy’s opening question to Verrilli
pointed to the problem. “Can you create commerce in order to
regulate it? “
Verrilli answered, “That’s not what’s going on here, Justice
Kennedy, and we’re not seeking to defend the law on that basis.…
what is being regulated is the method of financing health — the
purchase of health care.”
Verrilli insisted that the individual mandate is nothing more
than “regulation of existing commerce.” He told the Court the
mandate “regulates the method of paying for a service that a class
of people to whom it applies are either consuming — or inevitably
will consume.”
“Inevitably”? The data show otherwise. Yet, astoundingly, at
least four, maybe five justices seemed to go along with the
argument.
Last August, the bipartisan panel of judges on the 11th Circuit
Court of Appeals were not bamboozled. The 11th Circuit was the only
federal appeals court to challenge the fallacy that all Americans
“inevitably” consume healthcare, and the only federal appeals court
to strike down the mandate. The 11th Circuit judges warned that the
mandate is “woefully overinclusive.” It conflates “those who
presently consume healthcare with those who will not consume
healthcare for many years into the future.” Compelling people to
enter healthcare commerce is different from regulating them once
they are consumers, ruled the 11th Circuit. Only the latter is
constitutional.
During last month’s Supreme Court showdown, that critical
distinction was glossed over. Justice Sotomayor said “virtually
everyone will use healthcare, ” and Justices Kagan, and Breyer
parroted the fallacy in so many words. Kagan called it key to the
government’s case.
In truth, the mandate forces healthy people to buy expensive
plans they won’t use. The money subsidizes insurance companies that
in turn are forced to implement politically popular changes
such as eliminating caps on benefits and waiting periods. A neat
and tidy scheme, but hardly within Congress’s enumerated Commerce
power.
Oral arguments can be misleading, and it may be that the
Justices ultimately will see that the Commerce Clause rationale
hinges on the false claim that everyone is a healthcare consumer.
Otherwise, this epic constitutional struggle could be decided not
on principle but on a mistake.
