Reading back over the oral arguments before the Supreme Court regarding the mandate in the Affordable Care Act, it is very striking how stupid this whole argument became. It used to be that Republicans were obsessed about people taking a free ride by refusing to buy insurance. Why should they suffer higher premiums to pay for Jose’s emergency room visit? Why not make every last deadbeat bastard become an unwilling Blue Cross or Aetna customer? Of course, some people can’t afford to buy health insurance, and why should they have to pay any income taxes to help the lazy, indigent masses acquire what they haven’t earned?
Then it turned on a dime into some great concern about these lazy bastards’ liberty or freedom to be deadbeats. Now they are in court complaining that the government enacted a law based precisely on their aversion to free riding losers. And the worst part is their legal argument. They freely admit that it would be totally constitutional to do health care some other way. We could, for example, simply expand Medicare so that it covers everybody. That would be constitutional. We could give people rebates for buying health care combined with a guaranteed issue requirement. That would be constitutional, although it would destroy the individual market, as it did in every state that tried it. We could require that everyone pay for health care with insurance, so long as we didn’t force them to buy the insurance more than one moment before they actually intended to purchase their health care (this one works great for car accidents and heart attacks). That would be constitutional.
The only thing that is not constitutional is to make people buy insurance two or more moments before they intend to purchase health care. That alone is the issue. All the debates before the Court about broccoli and burial services and markets and car insurance and people in Manhattan who don’t drive are just big distractions from the stupid artificial distinction the right is making. “You can make people pay for health care with insurance, but you can’t make them do it ahead of time.”
This is so dumb it’s actually painful.
If there’s a ray of hope, it’s that Justice Kennedy has some self-awareness about how dumb this is:
JUSTICE KENNEDY: I’m not sure which way it
cuts. If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that [if] this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since the Court [sic] can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.
It’s curious that he thinks there is something dishonest about the Affordable Care Act. The only reason there is a damn mandate in the first place is so we can continue to have a totally superfluous health insurance industry in this country. We can’t have them all reduced to selling Medicare Advantage plans, can we? No, why wipe out the opportunity for people to make a profit off our sickness?
And that’s basically how Solicitor General Verrilli responded to Justice Kennedy:
GENERAL VERRILLI: Let me try to answer that question, Justice Kennedy, and get back to the question you asked me earlier. The, the — I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare/Medicaid type model; and so it seems a little ironic to suggest that that counts against it.
Exactly. It’s a little ironic that the right has totally flipped their position on the best way to do health care from their counterproposal to HillaryCare and Mitt Romney’s Massachusetts reform, which both utilized the individual mandate, to now arguing on behalf of freeloaders.
Don’t get me wrong. I hate the mandate. I don’t want to be a customer of the health insurance corporations. Let me pay for my insurance by paying taxes. But don’t tell me I can’t have single payer and I can’t have a public alternative to private insurance and then tell me that your stupid immoral plan is unconstitutional. If It’s unconstitutional then the only alternative is single-payer. And that’s the position the Democrats will be forced to take if this law is struck down.
