Sun May 19 2013

The Supremes: What on Earth are they thinking?
by Kurt Bateman, Single Payer Action Network-Ohio
March 29, 2012

The Supreme Court of the United States (SCOTUS) has, this week, been considering various aspects of the Patient Protection and Affordable Care Act (PPACA). While political pundits and court watchers have been holding forth on what this all means, the ability to discern anything from the oral arguments is nearly impossible.

The first day of arguments centered on the whether or not cases brought against the PPACA should even be heard in light of a law called the Anti-Injunction Act. The basic concept under this statute is that a person who has petitioned for relief (brought a lawsuit), must be able to demonstrate actual harm in order to have standing to bring the case. In the case of the PPACA no one has had to pay a penalty for not purchasing healthcare insurance so far. In fact, under the PPACA, this won’t happen until at least 2015 when folks who don’t or can’t purchase insurance will have the penalty enforced by the IRS.

Though SCOTUS seemed to focus on whether a penalty in the law is a indeed a tax, this feature of the argument (Anti -Injunction) gives them ample opportunity punt the entire case if they decide not to enter a decision on this politically charged issue in an election year. The fact that they even took this issue under consideration makes one wonder.

The second day of arguments took on the constitutionality of the individual mandate to purchase insurance. The main administration argument is built upon the necessary and proper sections of the constitution that pertain to the commerce clause. The commerce clause gives congress authority to regulate interstate commerce among and between the states and the “necessary and proper” section establishes the congressional power to create statutes to effect said regulation. While the “conservative” members of the court seemed to deride this by equating the mandates to purchase insurance with the purchase of broccoli, I respectfully disagree. Every person drawing a breath will eventually need care at some point in their life. Broccoli is a simple commodity. If one chooses not to purchase broccoli it does not shift the cost of broccoli to the customer who does. When someone who has no coverage and can’t cover the cost of care they receive, that cost is shifted to others. Furthermore, the commerce clause has been very broadly applied in the past and lower court justices have held it applied and the mandate was constitutional. Will SCOTUS the court follow past commerce clause precedent and lower court rulings or will they be hyper partisan and declare the mandate unconstitutional simply to strike a blow at the sitting president’s signature accomplishment?

On Wednesday SCOTUS considered whether the mandate was severable from the rest of the law or if finding the mandate unconstitutional made the entire law unconstitutional and was the expansion of Medicaid is an over- reach of federal power over the states. Ironically the “conservatives” were left attacking a feature of the law that was championed by “conservative” politicians in the past and declaring that if the mandate is gutted then the entire law must be scrapped. Who’s the judicial activist now Justice Scalia? The court is supposed to refer the legislating to the congress aren’t they?

As an advocate for a universal “Medicare for All” single payer system, I recognize that no matter what the high court finally decides, the true cost of failure is in human death and suffering. We must never rest as long as one person dies from lack of adequate care (50K/year do today) or that anyone is driven into bankruptcy when they or their loved ones fall ill (nearly 1 million/year are today).