High Court Hopes

Justice Anthony Kennedy was viewed as the key vote heading into the U.S. Supreme Court arguments over the constitutionality of Obamacare, and he remained the key — and still uncertain — vote as the sessions concluded on Wednesday.

Opponents of the law cheered when Justice Kennedy asked early during Tuesday’s argument over the individual mandate: “And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act . . . and that changes the relationship of the Federal Government to the individual in a very fundamental way.”

We have been saying since before the law was enacted that it would turn citizens into subjects, beholden to the all-powerful federal government. By forcing them to buy expensive private health insurance that they may not want or think they need, the federal government would be dictating not only what health care they will get but how they must spend their own after-tax money — in clear violation of their liberty.

Kennedy’s key words — “changes the relationship of the Federal Government to the individual” — indicated that he has serious concerns about the mandate.

But toward the end of Tuesday’s session, Kennedy suggested he could also be convinced that “the insurance market is unique.” He asked about a “young person who is uninsured.” He said that being uninsured is “very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That’s my concern in the case.” If so, mandating the purchase of insurance could be seen as a justifiable power under the Commerce Clause.

So he isn’t so sure after all. Those who were cheering on Tuesday could find themselves shocked, if Kennedy actually were to vote to uphold the mandate because health care is unique and because of his concern about cost-shifting.

The issue that preoccupied the justices during Tuesday’s arguments on the individual mandate involved the question of “uncompensated care” — that is, the concern that people who don’t have health insurance will shift their costs of inevitable care to those who do have health coverage.

The Galen Institute and several of our sister organizations submitted an amici curiaebrief to the Supreme Court addressing precisely this issue and showing that the law actually exacerbates the problem of uncompensated care. In our brief, submitted to the court in February, we pointed out that instead of solving the problem of “free riders” who consume health care that they don’t pay for, the actual impact of the law will be toincrease the cost shifting by $3 billion a year. I explain the details here.

Tom Miller of the American Enterprise Institute also challenges Congress’s “findings” about the cost of uncompensated care, citing studies that show that the “amount of uncompensated care potentially available for private cost-shifting is most likely even lower, at about $8 billion in 2008.”

This is clearly no reason to bankrupt the federal government and shred the Constitution. The law should be struck down in its entirety. It truly will make the problems we need to solve even worse, and create many more throughout our health sector and economy. After listening to the argument, I think there is a good chance the Supreme Court will agree.

Posted on National Review Online, March 29, 2012.

Posted in: Uncategorized