Friday, April 6, 2012

Our Crappy Supreme Court, Day 3 - Obamacare Edition

Some of the justices need to get their information on health care economics from sources
other than insurance industry lobbyists and right-wing blogs.

Today, we continue with recent cases either decided or being looked at by the Supreme Court that have made me further lose faith in the Supreme Court as an institution that supports American democracy. This case is (likely to be) another in which the Supreme Court will make a fundamentally partisan, political decision and wrap it up in the legacy of the Supreme Court in a way that makes this partisan decisions unchallengeable by anyone - not the President, not Congress, and not even the people of the United States. And that is seriously dangerous - both for the Supreme Court as an American democratic institution, and for the soundness of American democracy itself.

The case today is one that has been in the news a lot in the past few weeks:

Florida v. Department of Health and Human Services (2012)

This is the case that was just argued in front of the Court last week and that will decide the constitutionality of the Patient Protection and Affordable Care Act (ACA), derisively known among conservative circles as Obamacare.

I'll say that I think that the ACA is constitutional, and that I think it's quite straightforward to argue that it's constitutional. The mandate to buy health insurance is, economically speaking, the exact same as a tax incentive, only implemented in the reverse and framed as tax penalty instead of a tax break. If it is constitutional for the government to tax you $1,000 and then give you a tax credit of $1,000 if you do X, it is functionally the same as making you pay a penalty of $1,000 for not doing X. Alternatively, it is constitutional for the government to tax you and turn around and give you a pension and health care in the forms of Social Security and Medicare/Medicaid, so why would it not be constitutional to forgo the runaround and charge a penalty for not having insurance directly?

If you say the ACA is unconstitutional, I don't see how you can defend the constitutionality of ANY tax incentive - and it seems to me that declaring all tax incentives unconstitutional would provoke a serious constitutional crisis in this country.

But, we'll see what the Supreme Court decides to do - this is a serious turning point for Chief Justice Roberts, as it will proclaim "whether he views himself as a member of a political coalition that is in power to impose its will on its country, or if he’s at least somebody that can rise above partisan politics." Personally, I don't have a lot of hope that Roberts will rise above partisan politics. Unfortunately, Roberts is in a unique position to impose his partisan views on the rest of the country, even though he's in a job that should shy away from political decisions.

Again, I would argue that whether the USA wants the ACA is a fundamentally political decision - Congress's ability to tax and provide tax incentives is long-established, and different Congresses may have different ideas about how best to go about doing that. But, the fundamental ability of Congress to tax and provide tax incentives is obvious, I would think - so I don't see what role the Supreme Court has to play in this fundamentally political decision. If Americans don't like this law, they can elect politicians who promise to repeal the ACA - I don't really see what the Court should have to say on this issue.

Aside from being another case that will likely (and unfortunately) be decided along purely partisan lines, the case about the ACA has demonstrated the extent to which the Supreme Court is too ignorant of the issues at hand to be able to deliberate intelligently about them. Unfortunately, ignorance about important topics is not limited to Congress - who are gleefully ignorant of how the Internet works yet still pass laws that govern the Internet, which is not OK. Similarly, it's obvious that many of the Supreme Court justices are too ignorant about health care to rule intelligently on a case about health care.

During oral arguments, it was obvious that some of the Supreme Court justices do not have even a basic understanding of the economics of health care, which in an ideal world would probably disqualify them from rendering a judgment on a case which is in large part about the economics of health care. Several different economists noted this obvious (or even willful) lack of understanding (particularly among the conservative justices) - I'll let Paul Krugman summarize:
Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.
Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.
Why? When people choose not to buy broccoli, they don’t make broccoli unavailable to those who want it. But when people don’t buy health insurance until they get sick — which is what happens in the absence of a mandate — the resulting worsening of the risk pool makes insurance more expensive, and often unaffordable, for those who remain. As a result, unregulated health insurance basically doesn’t work, and never has.
There are at least two ways to address this reality — which is, by the way, very much an issue involving interstate commerce, and hence a valid federal concern. One is to tax everyone — healthy and sick alike — and use the money raised to provide health coverage. That’s what Medicare and Medicaid do. The other is to require that everyone buy insurance, while aiding those for whom this is a financial hardship.
And as I outlined earlier in the post, I don't see how there is a legal difference between the two approaches - there's certainly no economic difference.

So, the case about the ACA demonstrates both 1) that the Supreme Court butting into what is essentially a political question, not a legal one, and 2) that the justices are too ignorant (at least on some topics) to render an intelligent judgment. Scalia in particular seems to take some of his legal briefings from right-wing blogs. He even pulled out the old one-liner about the bill being 2,700 pages long - "You really want us to go through these 2,700 pages?" he asked, adding: "Is this not totally unrealistic?"

Yes, Mr. Justice, we actually do expect you to go through the whole law before deciding its merits - you are a Supreme Court Justice, for Pete's sake!

[Another interesting historical side note - the last time the Supreme Court stepped in to overturn an economic law passed by Congress, it nullified a federal law outlawing child labor and establishing a minimum wage, citing reasons very similar to those posited by Scalia during oral arguments. I wager that, if the Supreme Court does the same here, history will look back on this case with about the same amount of sympathy.]

Of course, this case isn't decided yet - it's possible that Kennedy will come down on the right side of history in this case, but I'm not holding my breath. If the Supreme Court overturns the individual mandate or the ACA, it will be yet another example of a partisan Court making partisan political decisions that should be left in the hands of the political process rather than the judicial process.

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