My letter to the Supreme Court on health reform

Dear Justices, if you plan to damage health reform, please do so openly, leaving your activist fingerprints on the product.

Dear Justices, if you plan to damage health reform, please do so openly, leaving your activist fingerprints on the product.

Before me is a beautiful column by Professor Mark Hall which describes the many logical and legal flaws in the 11th Circuit’s recent opinion declaring the individual mandate to be unconstitutional.

I can’t add much legal insight to what Professor Hall has produced. I confess that I find it laughable that people contest the connection between this mandate and interstate commerce. Long-standing federal policies regarding agriculture subsidies, medical marijuana, minimum wage, and many other matters have similar or weaker claims on the same terrain.

Reflecting years–indeed decades–of legislative fighting, interest group negotiation, and health services research, American government has finally enacted a package to achieve near-universal coverage. The final product includes a fairly weak individual mandate to keep as many people as possible in the insurance pool and to deter free-riding. The mandate may or may not be optimal policy. It’s a plausible and reasonable response to important concerns, negotiated among interest groups and policy experts subject to many months of analysis, congressional hearings, and public debate. This is precisely the sort of matter a restrained judiciary would let presidents and congresses hash out.

Health services researchers, public managers, and politicians from the Heritage Foundation to Mitt Romney to Karen Ignani to Nancy Pelosi to Hillary Clinton to Jon Gruber to Barack Obama have long understood that one can’t provide guaranteed-issue and community-rated health insurance without mechanisms to address adverse selection, some mechanism to prevent people from free-riding and then signing up for coverage when they become sick or injured.

Health care is a unique, $2.6 trillion national enterprise that implicates every level of government. It affects virtually every economic entity and interest group in the country. Fifty million people in America are uninsured. Millions more who require some combination of government and other help. Uncompensated care is a huge national concern. It affects everything from Medicare and Medicaid to the closure of the community hospital. Cost-shifting is a serious concern, too.

The new health care law includes hundreds of billions of dollars in affordability credits to ensure that low- and moderate income people can afford coverage. By all accounts, the individual mandate is important component to arrangements. The mandate is projected to have a significant impact on health insurance premiums, the number of uninsured, and other national matters.

Although this bill is ideological moderate in its details–with provisions reflect many past and present Republican proposals—it achieves the historic progressive goal of near-universal coverage. More important, it is the domestic policy centerpiece of the Obama presidency.

So Republicans wish to kill it, on both ideological and partisan grounds. As a matter of partisan politics, they are entitled to try. Their use of judicial activism is much more hypocritical and problematic. Republican governors have filed lawsuits challenging the constitutionality of the individual mandate. It’s hard to believe that the same suits would have been filed against the individual mandate in Republicans plans of two decades ago.

These same politicians hope that conservative jurists will help them prevail. Given what happened in Bush v. Gore and Citizens United, the current Supreme Court majority might well help them do it. When one cuts through hundreds of pages of majority opinions and dissents—not to mention the vocabulary of decorum barnacled onto an increasingly partisan legal process–that’s really what this is about.

I would ask one thing of the Supreme Court: If you do this, do it openly. Write an opinion whose partisan frame and extreme pre-New-Deal reasoning are plain to the American public. You will wound president Obama. In doing so, you will spark a long-overdue conversation about how both parties could create a genuinely nonpartisan judiciary that commands, and that actually deserves, political legitimacy.

Author: Harold Pollack

Harold Pollack is Helen Ross Professor of Social Service Administration at the University of Chicago. He has served on three expert committees of the National Academies of Science. His recent research appears in such journals as Addiction, Journal of the American Medical Association, and American Journal of Public Health. He writes regularly on HIV prevention, crime and drug policy, health reform, and disability policy for American Prospect,, and other news outlets. His essay, "Lessons from an Emergency Room Nightmare" was selected for the collection The Best American Medical Writing, 2009. He recently participated, with zero critical acclaim, in the University of Chicago's annual Latke-Hamentaschen debate.

12 thoughts on “My letter to the Supreme Court on health reform”

  1. If the Supreme Court only gets rid of the mandate, it will be an enormous gift to the Democrats. Remember, this statute only had one enemy: the Republican Party. Every industry group in the world supported it, and the individual health insurance market depends on it. ACA without the mandate would put these insurers out of business.

    All of these stakeholders would put incalculable pressure on the Republicans to do something about it. And 40 Democratic Senators could demand a very high price for their acquiescence, no matter who is running the White House or the rest of Congress.

    Justice Roberts is quite capable of doing this calculus. If he can get four more votes on non-severability, he might kill ACA entirely. But if he can’t (and I don’t think he will), he will make sure that the Court upholds this statute. Justice Kennedy, IMO, isn’t this cynical, but he is likely to vote to uphold ACA for different reasons.

  2. In doing so, you will spark a long-overdue conversation about how both parties could create a genuinely nonpartisan judiciary that commands, and that actually deserves, political legitimacy.

    Well, it would help if the Judiciary were non-partisan. It would make it easier for the judiciary to be perceived as non-partisan is the law they had to apply weren’t so facially partisan; in other words, a Constitution that wasn’t written by people who are much more suspicious of the central government than they are.

  3. One Bill Clinton appointed judge, Frank Hull has ruled against the constitionality of indivudual mandates, the 11th Circuit Court, Georgia Decision.

    This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives,” Judges Joel Dubina and Frank Hull said in a jointly written opinion.

    The USA has the strongest bill of rights in the world, but if the private healthcare insurance companies are mandated to take on those clients with a pre-existing conditions, healthy, self-reliant people against their will, will have no choice but to purchase insurance from private healthcare insurance to make up the difference. Not a satisfactory outcome, in which the individual is no longer sovereign, and one in which Obama vigorously opposed in the campaign, when Hillary advocated individual mandates.

    I would rather have two tier system as in Brazil where public healthcare in clinics and hospitals are available to all, even vistors,(as far as I know) free, but those, about 30% of the population, that want much better heath care and can afford it, pay private premiums or accounts and have private healthcare.

  4. What I find laughable is people trying to equate a Kansas wheat farmer who was participating in a federally funded crop set-aside program while also claiming to grow the very same crop for his own use outside of program rules with an ordinary citizen who has and wants nothing to do with the voracious, vicious, amoral sociopathic blood-sucking parasites known as health insurance companies.

    If you can’t see the difference between people who don’t wish to engage in commerce and a guy who is trying to have it both ways with federal benefit programs then your vision is shot.

    Medicare for all is clearly constitutional, the must-buy mandate is not even arguably so except by torturing the meaning of the key presidential case to an absurd degree. The extent to which liberals, in their permanent cringe, are willing to compromise their principles while enriching their foes is truly astounding.

  5. JMG, no doubt Medicare for All would easily survive any constitutional scrutiny. If I felt that our political system had the will to implement it I wouldn’t so much mind if the SC struck down the ACA. One possible scenario, if the ACA survives the courts, is that Republicans (with the Democrats’ complicity) will compromise it enough that M4A starts to look appealing even to policy makers. The citizenry, of course, is already there in large measure.

    Let’s also not forget that universal access is not the total end game. The real end game is bringing health care costs under control. But we can’t really even start that one until all the stakeholders (i.e. Everybody) are in the room.

  6. genuinely nonpartisan judiciary

    Other than perhaps the first euphoric years of the republic, have we ever had this? If not, where do we look for models?

  7. Steve Crickmore: “The USA has the strongest bill of rights in the world.” Evidence please. Exactly how is the First Amendment stronger than say the German Grundgesetz? In practice, the US guarantee for freedom of speech is stronger, protecting hate speech banned in Germany, but German and other European guarantees for privacy are often stronger (Grundrechte Article 10). Pure assertion doesn’t hack this.

  8. Without the individual mandate, but with no rescission, no pre-existing condition exclusions, community ratings and the rest of the ACA goodies that would be political suicide to kill, I give the US for-profit insurance industry maybe 10 years (could be more, could be way less if investors see the writing on the wall and flee en masse). Talk about 11-dimensional chess…

  9. JMG, you assert that the Wickard case involved a farmer who was “participating in a federally funded crop set-aside program.” Even if that were true (I’m pretty sure they are not) it doesn’t affect the holding in Wickard, which was that the commerce clause gives the Federal government the ability to limit how much wheat a farmer can grow. That ability covers all farmers, not just farmers participating in some particular Federal program, or farmers who sell wheat.

  10. Read Wickard just last week, and I don’t recall any “federally funded crop set-aside program” being involved. But I guess it makes a better sounding story, to pretend that he had signed up for some kind of subsidy, then tried to cheat on the terms. Rather than just having the government up and tell him how much wheat he was allowed to grow on his own farm…

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