Editorial: Health care for millions at stake

Published: Sunday, Mar. 25, 2012 - 12:00 am | Page 6E
Last Modified: Monday, Mar. 26, 2012 - 8:23 am

President Barack Obama signed the Affordable Care Act into law two years ago this month. Now, the U.S. Supreme Court is taking up its constitutionality, with three days of hearings starting Monday – and a decision, we can all hope, before summer.

The issue involves the individual mandate, which requires Americans starting in 2014 to maintain health insurance coverage or pay a penalty on their tax returns, so they don't pass their medical costs to others.

The written briefs reveal how radical and flimsy are the arguments of the would-be repealers. But just because arguments of the law's critics are flawed does not mean that the Supreme Court will uphold the Affordable Care Act.

On this polarized court, the ruling could come on a 5-4 vote, with Sacramento's own Justice Anthony Kennedy the likely deciding, as yet unpredictable, vote.

In the end, this case is about Congress' power to forge national solutions to national problems.

The repealers focus on four main issues, one of which is that the individual mandate is unprecedented: "If Congress really had this remarkable authority, it would not have waited 220 years to exercise it … The individual mandate is the first-ever law of its kind."

Yes, so was creation of a central bank in 1791, Social Security, Medicare, laws against private discrimination in restaurants or workplaces, clean air and water laws, food and drug safety laws, workplace safety laws, minimum-wage and work-hour laws. Many laws of the modern United States are unprecedented innovations.

Another contention is that health care and health insurance is an area of "traditional state concern." This is odd, indeed.

Most health insurance is sold by national or regional health insurance companies. Congress extensively regulates and provides federal tax subsidies for employer-provided health insurance. Congress also provides public health insurance through Medicare, Medicaid, the Children's Health Insurance Program and other programs.

Federal law has the predominant role in health care delivery and finance, not state law.

A third claim is that the individual mandate "forces healthy and voluntarily uninsured individuals" who are "outside the stream of commerce" to buy insurance.

This claim of "inactivity" is a fiction. None of us knows what or when illness or accident might befall us. The uninsured who suffer a heart attack or severe trauma in a car accident get medical care and usually can't pay for it all.

Few individuals without insurance can cover the cost of a hospital stay, $22,200 on average, so it gets passed on to people who are insured – adding $368 for individual premiums and $1,017 to family premiums in 2008.

As several state attorneys general, including California's Kamala Harris, wrote to the high court, if this is inactivity, "then there's a whole lot of 'inactivity' going on in the national health care market."

Opponents raise fears of unbounded federal power. The argument is that if government can require an individual to buy insurance or pay a penalty, what's to stop it from requiring a person to buy a car or a flood insurance policy? Get real.

Car manufacturers do not have to give you a car if you can afford to buy one, but show up at a dealership without wheels. If you don't have flood insurance, contractors do not have to repair your flood-damaged home for free. States that already require drivers to buy car insurance don't require people to buy broccoli. This is just scaremongering.

In the end, the issue is this: Does the U.S. Constitution give Congress enough berth to address problems that cross state boundaries and that states cannot effectively address alone, such as the problem of old-age retirement that Congress addressed with the Social Security Act of 1935?

Or should the court take an activist role to clip congressional power and restore a limited, pre-1930s understanding of Congress' power?

If the Supreme Court chooses to undo the work of Congress by overturning the individual mandate, 50 million uninsured Americans remain. The task of finding ways to get them covered won't go away.

That's what Justice Kennedy and the other justices have to ponder.

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