I don’t know how the Supreme Court will rule on the constitutionality of the health care law’s individual mandate. Similarly, I don’t know how it will decide if the federal government has unconstitutionally required states to expand Medicaid benefits.
But no matter what the Supreme Court decides, it will not solve the health care issue, settle long-running health care disputes, rationalize expenditures, bend the cost curve, or guarantee coverage to those who seek it and cannot afford it.
The fact that many assume the Supreme Court can “solve” or “decide” these issues constitutes one of the most depressing manifestations of our dysfunctional and partisan environment. The freakishly distorted reliance on nine unelected and life-tenured jurists feels like a willful subcontracting of obligations that have historically been the province of Congress and the president.
The Court is being asked to solve the health care crisis by deciding if the financing mechanism (the individual mandate) needed to extend coverage to the uninsured is constitutionally permissible. A decision to uphold the mandate will not solve America’s health problems any more than will a decision to strike it down. We should be glad of this.
In the main, the Court can decide only if a small minority (after all, 84 percent of Americans already have coverage of one kind or another) must purchase health insurance. The ongoing arguments over costs, benefits, access, and allocations will continue.
We are assuming, ignorantly, that the Court’s will be the last word. It won’t even be the 1-millionth-to-the-last word. It can’t. And it was never meant to be. That’s what’s been lost in the health care debate — the sense that the high court is designed to settle differences set in motion by a deeply divided Congress.
Yes, the individual mandate is unpopular. In the most recent United Technologies/National Journal Congressional Connection Poll, 66 percent of respondents opposed the mandate; a meager 28 percent supported it. It wasn’t even popular among Democrats: 48 percent opposed the mandate and 44 percent supported it.
But the law itself is not nearly so unpopular. In the same survey, 43 percent said they favored the health care law and 46 percent opposed it (the poll’s margin of error was 3.6 percentage points). A vast array of other polls show that the mandate is not popular but the benefits provided by the financing of the mandate are. The law is bad, the law is good.
Contrary to what the polls indicate or what the protesters shout outside the Supreme Court, the biggest issue in health care is not the constitutionality of the individual mandate or of the Medicaid expansion. The biggest issues are the rising cost of care and the dramatic drop in employer-based coverage.
According to the Kaiser Family Foundation, in 2000, employer-based health insurance covered 64.1 percent of Americans. It now covers 55.3 percent. Average premiums for family coverage have doubled since 2002 to more than $13,800. National spending on health care was $1.4 trillion in 2001. It’s projected to be $3.1 trillion this year.
Whether the Affordable Care Act can address these problems and all the related entanglements of coverage, access, and quality of care is unclear. And the Supreme Court will, in the end, have nothing to say about that. Preserving the individual mandate, if that’s what the Court decides, simply allows the health care law to stand. It does not and cannot guarantee even limited success. The act may expand coverage—but it may not reduce costs, improve access to doctors, or achieve better lifetime care for those with insurance or those who currently lack it.
Those judgments will be made by the people, and the ramifications will be felt by politicians, not judges.
As James Madison taught us all in Federalist 51: “Ambition must be made to counteract ambition. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precaution.”
The subcontracting to the Supreme Court of the supposed “fate” of the Affordable Care Act is folly, and it debases the very system of government the founders created. The high court cannot and will not solve the health care issue. The fight will go on, and the legislative and executive branches had better reconcile themselves to this truth and speak credibly about this harsh reality in the general election.
We have come to kid ourselves that separation of powers equals division of labor. In so doing, we have indulged in the fantasy that the Supreme Court is health care’s beast of burden. It is not. After it renders its decision, whatever that may be, the institutions properly suited to the task—the legislative and executive branches—had best take up the yoke.
This article appears in the March 28, 2012, edition of NJ Daily.