“Could you tell me,” Justice Sonia Sotomayor began, in perhaps the most succinct moment capturing this schism, addressing Paul D. Clement, an attorney representing the law’s challengers, “do you think the states could pass this mandate?”
“I represent 26 states,” he replied. “I do think the states could pass this, but I….”
But they won’t. The Republican leadership in his clients’ states, including 11 with the highest percentage of uninsured residents in America, don’t want to fix a broken healthcare system. Forget that these states are supposedly more religious than liberal America—they are not their brothers’ keepers. It’s everyone fending for themselves: that’s the America they want.
In fact, Clement and a like-minded colleague argued that Congress created the healthcare cost crisis—including driving up everyone’s premiums—when it required emergency rooms to treat everybody regardless of their ability to pay. That’s unacceptable social engineering, he argued, drifting away from narrower constitutional issues.
“There's two kinds of cost shifting that are going on here,” Clement said. “One is the concern about emergency care and that somehow somebody who gets sick is going to shift costs back to other policy areas -- holders. But there's a much bigger cost shifting going on here, and that's the cost shifting that goes on when you force healthy people into an insurance market precisely because they're healthy, precisely because they're not likely to go to the emergency room, precisely because they're not likely to use the insurance they're forced to buy in the healthcare insurance. That creates a huge windfall. It lowers the price of premiums.”
This survival-of-the-fittest, screw-everyone-else line of argument set the tone for most of the second day of hearings on the Affordable Care Act of 2010. The Court’s moderate minority pushed back, but not nearly as forcefully as the conservative majority, which repeatedly said that allowing the coverage mandate to stand might open the door to future congressional orders in some other area of life affecting all citizens, such as requiring people to eat certain foods—such as broccoli—or have a cellphone for emergencies, or even buy burial insurance, since we all die. (Yes, they really used these examples.)
“It's good for you in this case to say, oh, it's just insurance,” Chief Justice John Roberts replied to the government’s lawyer, Solicitor General Donald B. Verrilli, Jr. “But once we say that there is a market and Congress can require people to participate in it, as some would say, or as you would say, that people are already participating in it, it seems to me that we can't say there are limitations on what Congress can do under its commerce power….”
The more liberal jurists did not let these Darwinian arguments go unquestioned. Justice Sotomayor quickly turned on Carvin’s argument that if emergency rooms only took people carrying checkbooks with positive balances that there might not be a crisis.
Justice Sotomayor: Do you think that there's -- what percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn't have insurance -- do you think there's a large percentage of the American population who would stand for the death of that child....Note that he did not answer the question—just as the red-state and libertarian-minded coalition that he and Clement represent do not want to acknowledge that there is a real crisis affecting the ability of tens of millions of Americans, especially including their states’ residents, to pay for the cost of healthcare when they need it.
Mr. Carvin: One of the more pernicious, misleading impressions that the government has made is that we are somehow advocating that people could get thrown out of emergency rooms, or that this alternative that they've hypothesized is going to be enforced by throwing people out of emergency rooms.
Justice Ruth Bader Ginsburg was quiet throughout most of the hearing but asked the obvious question, comparing the coverage mandate to every worker paying for Social Security:
“It just seems very strange to me that there's no question we can have a Social Security system besides all the people who say: I'm being forced to pay for something I don't want. And this it seems to me, to try to get care for the ones who need it by having everyone in the pool, but is also trying to preserve a role for the private sector, for the private insurers. There's something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that's fine, but if the government wants to get -- to preserve private insurers, it can't do that.”The arguments and discussion before the Court suggested to some observers that the conservative majority would invalidate the individual mandate—though leave the rest of the law in place and let states decide how to proceed and implement it. Longtime court watchers seemed to suggest that the decision lay in Justice Anthony Kennedy’s hands.
Earlier in the hearing, Kennedy raised the issue that the mandate could “change the relationship of the federal government to the individual in a very fundamental way.” However, later in the hearing, he seemed to be swayed by the government’s contention that people without insurance undeniably will get sick and everyone else will end up paying for their care—making this an economic issue that spans states’ borders and obviously falls under the U.S. Constitution’s Commerce Clause, allowing Congress to regulate interstate economic activity. “They are in the market in the sense that they are creating a risk that the market must accord for,” Kennedy said.
And with that ambiguous statement, court watchers are predicting it will be a very close call when the justices debate and decide the case. But one thing is not ambiguous at all from Tuesday’s hearing: much of red-state America’s political leaders do not care at all about improving healthcare for their residents. The party of no has reaffirmed its commitment to stonewalling and being part of the problem, not the solution.
Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).