Posted by Shyam Moondra
On March 23, 2010, President Barack Obama signed into the law the Affordable Care Act passed by then Democrat controlled Senate and House, which would gradually roll out comprehensive health care reforms by 2014. The most contentious element of the reforms is the individual mandate that requires all citizens, old or young and healthy or sick, to buy health insurance; the failure to do so would automatically trigger a penalty of around $1,000 a year unless exempted because of religious beliefs and financial hardship. Many conservative Americans consider this mandate to be unconstitutional and a power grab by the federal government. The government argues that the penalty is a "tax" which is within the constitutional mandate of the Congress.
The Obama administration's position is that without the individual mandate, the people with pre-existing conditions would either be denied insurance coverage by the insurance companies or the insurance premiums for such people would be prohibitively high. Also, the people would tend to buy health care insurance only when they get sick, thereby increasing the insurance premiums for everybody else. Many without insurance would just go to the hospital emergency room and get treated knowing that the law requires hospitals to treat sick people even if they are not insured and the cost of treating such people would then be borne by the taxpayers.
The individual mandate is not scheduled to go into effect until 2014, but many states controlled by the Republicans chose to seek pre-emptive legal remedy to freeze the so called Obamacare in tracks. Last week, the U.S. Supreme Court (USSC) heard the arguments on two key issues: (i) can the government force the citizens to buy a product or service they don't want to buy and (ii) can the federal government force the burden of the expanded Medicaid entitlement program on to the states without providing full funding.
Since the individual mandate has not been yet implemented, no harm has been caused to the citizens. Therefore, rather than instigate a train wreck, the USSC may choose to not take any action at this time and let the health care reform proceed. After the mandate has been implemented and there is enough data available on the actual experiences of the citizens on the cost-reduction objectives of the health care act, the USSC may then re-visit this issue at a later date after the November presidential elections. Tossing out the health care law now would make it look like a political decision and be perceived as extreme judicial activism which would be harmful to the court's credibility. The government's job is to solve problems and the USSC is part of the government. The USSC's politicized approach to an ideological problem would make them look like an extension of the radicalized Congressional Republicans which can't be good for the country. In any case, if the young people don't buy health care insurance, they will have to pay a lot more when they get old than they would pay if the individual mandate were implemented. There is nothing unconstitutional about the government's attempt to address the problem of high health care cost in the U.S.
The USSC has the following four options:
· Trust the Congress' judgment on fixing a major problem that has enormous implications for our economy and declare that the law is constitutional. Clearly, without the individual mandate, the escalating health care cost cannot be controlled.
· Do nothing. Since the most objectionable element of the health care act, the individual mandate, has not been yet implemented, it's premature to make a decision without knowing how this will turn out. So, in essence, the court could rule to not rule at this time and revisit the issue at some point in the future, after we have had some data on the results from the implementation of the law.
· Let the most of the law stay but declare that the individual mandate is unconstitutional. The Congress would then have to find a fix.
· Strike down the entire health care act including the things that are constitutional. This would seem an overreach by the conservatives on the bench and will do the most harm to the reputation of the USSC.
Given that rapidly increasing health care cost is a major problem, the Congress has the authority to pass laws related to taxes and commerce, and the fact that dismantling the Affordable Care Act would lead to massive disruptions and confusion making the health care problem even more acute than it is now, the USSC would likely opt for one of the first two options as described above.
