July 2012

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Of Broccoli and Brotherhood: The Health Care Decision

by Jonathan Wallace jw@bway.net

The Supreme Court's health care decision which came down Thursday morning is the most important, as well as the most avidly awaited and reported, decision in decades. It will play as profound a role in shaping America as Citizens United, and has more continuing impact than Bush v. Gore, a highly political decision which by the Court's own terms was never intended as a precedent.

I assumed, as did many of us, that the rightward-leaning court would throw out the Affordable Care Act in its entirety, leaving us in the health care mire for decades to come if not for eternity, a decision I would have regarded as an act of terrible cruelty and cynicism, the Court actively intervening to make sure a terrible human problem did not get solved, even though no alternative was in sight. I never anticipated that the Chief Justice would be the swing vote saving the law.

As an interesting sidelight, the named plaintiff in the case is the National Federation of Independent Businesses, a nationwide trade group which provided my health insurance when I started my small law practice in the 1980's. Then as now, individual coverage was largely mythological, unaffordable if available. A few groups like the NFIB provided access for self employed individuals and small businesses to large health insurance groups with reasonable premiums. When I needed to find insurance some years ago after leaving the ambulance world, I contacted the NFIB, only to find that they no longer write coverage in New York. My wife and I were facing the reality of having to move to Florida or Texas just to find insurance when I located a theater nonprofit whose eligibility rules welcomed us. That, the only New York coverage I could find, now costs $1400 a month for the two of us, a premium I can barely afford and which would be prohibitive for everyone else we know.

NFIB, which covered me twenty five years ago, now is litigating to make sure I can't find insurance. I don't see any indication that the organization, if it won, would return to the New York market, which it abandoned before anyone even dreamed of the mandate.

The back story

As I have written in several previous essays, American health care has reached a perfect storm of dysfunction. Millions of Americans have no coverage, yet hospitals are required to treat them for grave injuries such as gun shots and serious illnesses such as heart disease. These hospitals, unpaid for their service, are closing their doors at an epidemic rate--in the last five years in New York, we have lost about a third of the hospitals I used to take people to on my ambulance, from small ones like Parkway in Queens to midsize and venerable like St. Clare's in midtown and huge and important like St. Vincent's in the Village. Americans are losing their houses and their children's college savings when they get sick, people with health insurance are discovering they are not covered for important procedures, medicines or a significant dollar amount of the care they need (my four day stay in the hospital two years ago resulted in a $4,000 bill to me though the insurance paid $16,000; a colonoscopy I thought was entirely convered resulted in a $1600 bill for the anesthesia). Premiums are so high nobody can afford private insurance ( most of the ostensibly middle class people we know who are freelance have no insurance). The fees charged for every aspect of medicine have become huge, while doctors routinely over-prescribe unnecessary and duplicative expensive tests like MRI's. The result is that every component of the system works to drive up costs, assuring high insurance premiums, bankrupt hospitals and an ever-increasing number of Americans without insurance. Significant blame for the whole mess can be placed on the young and healthy who choose not to have insurance, secure in the knowledge that if anything bad happens, the local hospital will be required to treat them--at your and my expense, and ultimately to everyone's detriment when the hospital closes its doors. Yet these free riders are exactly the constituency the Republicans are flattering and courting with the "broccoli" argument: why should you be required to buy something you don't want?

Along came President Obama and knew that he could not risk recommending a simple and logical solution: single payer, which works so well in Canada and numerous other civilized countries. We have it already in Medicare, which works so well it has become off limits to even most Republicans; all we would have to do is extend it to everyone. Ironically, the Republicans who are most eager to see the rest of us without insurance, themselves have excellent government coverage, which they are not looking to renounce in solidarity.

The President instead cobbled together a strange, extremely complicated patchwork, the Affordable Care Act, to use sticks and carrots to force private insurers to cover many more Americans. The cornerstone of this system was the so-called "mandate", a measure to compel the young and healthy, the free riders beloved of Republicans, to get coverage or pay a rather modest penalty if they did not. As long as the healthy are buying insurance, private companies can better afford to cover the sick, those with pre-existing conditions and others they shun today. The private mandate, and the Republican broccoli argument it inspired, were the ball in play, the crux of this week's decision.

Justice Roberts' contribution

The first and most massive insight I got from reading the opinion: I suspect Justice Roberts has a conscience. Justices Scalia and Thomas have none; they present as sociopathic Republican operatives, who simply no longer care about the sometimes massive collateral damage from decisions like "Citizens United". The decision the minority would have written would have left millions of Americans suffering and dying for more decades to come. Past defeated attempts to solve America's health care problems represent a history of cruelty, lies and deliberate delay, the actions of a party which has never presented the slightest alternative solution, and has been content, as it defeated efforts by Roosevelt, Truman, Nixon and Clinton, to let millions of Americans suffer, lose their homes and savings, and die while extolling illusory "free market" forces. The culmination of all these Republican efforts has been today's extraordinary dysfunction: high prices, low insurance coverage, closed hospitals.I imagine Justice Roberts awake at four in the morning, staring at the ceiling, and discovering (unlike Scalia and Thomas, so corrupt and uncaring they would lose no sleep), that he could not be the one to perpetuate that legacy. However, its also possible (and not inconsistent, compassion and ambition can sometimes co-exist) that Roberts also cares how he will be viewed by history--something else about which Scalia and Thomas appear completely apathetic.

However, Justice Roberts, on his way to sustaining the act, detours through an egregious and dishonest argument. The constutionality of the act rested on two separate and independent arguments: it could be upheld if it was either found to be an appropriate exercise of the federal commerce power, or of the taxing power (or thrown out if found to be justified by neither). One anomaly, very evocative of the strange pass we have reached in American politics, is that the majority of mainstream American constitutional scholars, even some who opposed the Act as policy, agreed it was clearly constitutional on both bases.

Roberts, on his way to sustaining the mandate as a tax, bought into a fringe, rather radical view which had previously been espoused only by libertarians and Tea Party activists, but which now represents a 5-4 majority of the court's thinking: that the commerce power of the federal government does not reach as far as the mandate, because it forces citizens who prefer to remain inactive to engage in commerce.

In a case often cited as a bogeyman of conservative and libertarian doctrine, the Supreme Court in the 1940's held that regulations on the amount of wheat a farmer could grow stretched even to a crop a farmer planned to use for personal consumption, because by growing it he was opting out of buying wheat in an interstate market. The court has routinely held that quite small, personal actions can be regulated under the commerce clause when they have the capability of affecting interstate commerce.

Roberts therefore engaged in a terribly deceptive act of logic chopping. In a science fiction novel I remember vividly from the 1960's, political dissidents were killed by being crushed by a moving wall. This was officially described as "deportation", because the inches in which their crushed remains came to rest were on the far side of a border from the country murdering them. This was a scary, amusing paradigm of a horrible act we characterize as a more benign one by ignoring the necessary consequences. Another example of this kind of thinking is telling the free riders, "Why should you buy insurance if you don't want it?" without adding, "But when you have a heart attack, you shouldn't expect to be treated at society's expense".

Calling a refusal to buy insurance an "inaction" which the federal government can't reach is a closely related distortion. Hospitals are closing all over America as a direct result of this inaction. Roberts actually spends a moment dealing with this concept, but says that the consequences are too far off in years, too contingent, to justify the exercise of the commerce power. This is a crock. Every free rider without exception, if he is not shot or hurt in a car crash first, will eventually report to an emergency room with cancer or heart disease. Every single one. This perfect foreknowledge means the failure to buy insurance has a clear impact on interstate commerce (hospitals treat people regardless of what state they are from, and we already have seen the phenomenon of people moving to another state to receive better free medical care). Roberts has to disregard the consequences, the way the totalitarian state in the science fiction novel disregarded the last three inches of its moving wall device.

What makes this doubly egregious is that the Supreme Court has always had an understanding that you have to think flexibly about solving problems. "Ripeness" is a constitutional concept which says that controversies should not be adjudicated if they are not ready, if nobody has yet been harmed. An old and very logical exception has been that otherwise unripe controversies may be adjudicated if "capable of repetition, yet evading review". For example, as I can testify from personal experience, the NYPD arrest a lot of people for disfavored political expression, then release them without charges or dismiss the charges later. A court deciding that someone who spent a night in jail but was not charged was bringing an unripe controversy would disregard the massive chilling effect, over time, on all those dissuaded from political speech by the mere arrest, regardless of the failure to pursue charges.

The Affordable Care Act presents a situation that is somewhat analogous. The inaction which Justice Roberts chose to ignore leads to a moment, sometimes thirty or fifty years later, in which the uninsured arrives at an emergency room with a heart attack. A court asked to rule on those facts cannot possibly require the free rider to go back thirty years in a time machine and buy coverage. So the act or state of being a young, healthy free rider who chooses not to buy insurance can recur endlessly without being reached by the commerce power, regardless of the consequences down the line.

This is arguably somewhat moot because Justice Roberts chose to sustain the Act under the tax power. It forecasts how the Court is likely to behave when other, formerly simple and clear uses of the commerce power are presented in the near future. We may lose some salutory legislation which cannot, like the mandate, be characterized as a tax. In the end, all will be resolved, up or down, by the appointment of the next two or three justices. If Mitt Romney appoints them, the court, ignoring the doctrine of stare decisis (leave a Supreme Court decision alone until it has a chance to ripen over some years) may reverse itself on the Act. If Barack Obama appoints them, the Court will eventually reverse the silly commerce clause reasoning of the majority in this case.

Having rejected the commerce power as a support, Justice Roberts' tax arguments are necessarily byzantine and rather ingenuous. The Obama administration, averse to any implication it was raising taxes, carefully described the mandate as a "penalty" instead--then empowered the IRS to collect it. Roberts therefore is not wrong to call it a tax, and to analogize it to other uses of tax power to enforce social policy--most notably the large tax on cigarette sales intended to discourage smoking.

However, to get there Roberts has to engage in some amusing gymnastics. A long time ago, Congress passed something called the "Anti-injunction Act", which provides that nobody can sue to stop a tax until after it has been first collected. The mandate won't come into being until 2014, so if it is a tax the simple and logical, but politically very unsettling result, would have been to tell the plaintiffs, come back in two years and we will figure it out then. At least one district court came out this way, but everyone in the Supreme Court case wanted the dispute settled now, so the Supremes had to appoint a lawyer to argue applicability of the anti-injunction law, since nobody else wanted to.

Roberts' ruling on this issue is an even more egregious display of logic-chopping than his approach to the commerce clause. He held that Congress characterizing the mandate as a "penalty" in the law was enough to get it out of the Anti-Injunction Act purview--regardless of the fact it is a tax for all other purposes! This truly is an elevation of form over substance. Under the same approach, the execution of dissidents in that old novel was not a killing, because the authoritarian government did not choose to call it so.

Roberts' approach on the substance of the tax issue is remarkably direct and simple for a present-day Supreme Court decision. (France's equivalent, la Cour de Cassation, is notable for writing decisions that run three or four paragraphs, while our Supreme Court tends to the hundreds of pages. The majority decision by Roberts runs thirty-some odd pages, and the complete ruling, with head notes, concurrences and dissents, more than 190.) Legislation should be interpreted to be Constitutional whenever there is a clear basis for so doing. Congress could legally choose to impose a tax on people who decide not to buy health insurance. Roberts is careful to say he is not opining on the social or political wisdom of the Act as policy; that is not his job.

Justice Ginzburg

Justice Ginsburg's partial concurring opinion, supports the Act on both the commerce and tax underpinnings. Hers is a sociological opinion, clear, practical and broad on commerce issues where Roberts' was deliberately narrow-minded and obfuscatory. Ginsburg writes:

Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Those without insurance consume billions of dollars of health-care products and services each year....Those goods are produced, sold and delivered largely by national and regional companies who routinely transact business across state lines. The uninsured also cross state lines to receive care. Some have medical emergencies while away from home. Others, when sick, go to a neighboring State that provides better care to those who have not prepaid for care.

Ginzburg's analysis is refreshingly clear. She notes there are three components to an effective health care policy at the state or the federal level: keep the premiums consistent so that nobody can be charged more than everyone else, assure the inclusion of people with pre-existing conditions, and the mandate, requiring the healthy to participate. She analyzes the experience of several states, including New York and Washington, which attempted the first two without the third--premiums rose for everyone, more employers and individuals dropped out of the system, insurers chose to leave the state. Therefore, the mandate is a necessary condition, the cornerstone, of a rational and effective policy.

Ginsburg also points out that Massachusetts, which enacted its own mandate a few years ago (under Governor Mitt Romney) now treats hundreds of thousands of out of state residents drawn into the state by Massachusetts' superior care. This seems to demonstrate effectively that these problesm must be solved at the federal level, not by individual states, because of the free rider problem.


Ginsburg makes an excellent point about the insidious broccoli analogy: it is not analogous. Anyone who doesn't like broccoli can get through an entire lifetime without buying and eating it, but almost none of us will get through a lifetime without using healthcare. The vanishingly small percentage of those who do would consist of the young and healthy who are killed instantly by a bullet or car crash, and the somewhat older who die immediately from their first heart attack. Therefore, since (as I said above in different words) the overwhelming majority of us will affect interstate commerce eventually through our use of the health care system, Congress had a clear, simple and logical justification under the Commerce Clause to impose the mandate.

The tactic of getting everyone worked up about broccoli therefore seems profoundly dishonest to me. The only alternative to mendacity on the part of anyone who shouts "Broccoli" in the health care debate is simple stupidity, an inability to see the whole picture. The Chief Justice is not stupid, nor is Rush Limbaugh. Perhaps Roberts wanted to throw the conservatives a bone while upholding the Act?

The dissent

The dissenting opinion, signed by the usual suspects (Scalia, Thomas and Alito, and sadly, expected swing vote Kennedy) is a textbook case of how to write an opinion that sounds cohesive, thoughtful and scholarly while accomplishing a profoundly political, terrible wrong: You disregard the latter. Pretend it doesn't exist. Reason it away.

The dissent does this with care and (I think I detect) a deep, hidden nastiness. At the center, the broccoli argument, that the mandate fails because the government cannot cross into making us do things we don't want to do, sanctioning our inactivity. Never mind that taxation and the draft are just two ways in which government constitutionally forces people into action who would prefer not to.

Much more fundamentally, the broccoli argument shows the justices at their worst, wilfully disregarding a terrible social problem which by its very nature is eminently solvable under the Court's clearest precedents. A healthy young person who declines to buy health insurance is not inactive. He or she is choosing to participate in commerce without paying for it. The possibility that this and all similar individuals will eventually see doctors, require hospitalization, is nearly absolute. How many people who decline insurance at age 25 will actually die without ever requiring health care? Whether it is 1 in 100 or one in 10,000, the number is tiny enough that the government is constitutionally able to act based on the remainder.

Another way of phrasing it: as Justice Ginzburg pointed out, America has a massive free rider problem--exactly the kind of problem which gets Republicans riled up when they perceive the poor ("welfare queens") or union leaders ("featherbedding") as free riders. But, in order to defeat a useful and effective social initiative they detest, the Republicans have had to affirm a lie, to treat the problem as one of liberty rather than selfishness, and wilfully to disregard that anyone is a free rider. Deceitful politicians therefore stay in the shallow end of the pool, talking only of broccoli, never even intimating there are any social consequences of people declining insurance. The Supreme Court justices have a harder problem than that, as they are expected to be intellectuals, and cannot always simply ignore the existence of grave problems. So, instead, they launch into a series of inconsistent falsehoods, of a quality one would expect to cause all their noses to grow.

They say that the Constitution is not about problem solving, but about enumerated powers, so the importance and efficacy of legislation is unimportant compared to whether it is justifiable under the Constitution. The Justices, while never quite acknowledging that Americans are suffering, going broke, dying because they don't have health insurance, pretend to acknowledge that there is a laudatory social goal here, merely one that cannot be solved by the means employed. But every Supreme Court opinion has to be read against the backdrop of history. Republicans have defeated attempts by Roosevelt, Truman, Bill Clinton, even Richard Nixon to solve this problem, always making similar arguments,without once ever offering a solution of their own. The major attack for seventy years has been to deter anyone from actually solving our problems, to assure the continuance of the status quo, to a point where fewer people have insurance, costs are higher, and there is more damage both to people and to service providers than ever before. The dissenters are mere ideological attack dogs, pretending there are other solutions (which they don't present) while doing their part to make sure the problem continues to fester. Yet sometimes--often--it is the gravity of a problem which implies the federal power to solve it. This should be such a case. Government after all is the way we act together to solve our common problems, and this is a very profound one. Yet the Republicans, abdicating logic and responsibility, say there is no way to do that, and that therefore it is our continuing obligation--the debt we owe liberty--to suffer and die.

Real hospitals are closing at an epidemic rate because of the free rider problem, forced to provide health care to the uninsured, not paid for it, ultimately bankrupt, but this issue is never mentioned by the dissent. There is a clear through-line, simple cause and effect, from the free riding healthy young person, to the hospital closure, which is exactly the kind of effect which the Court has always found to affect interstate commerce. Part of the problem with hospital closures and financial stress has always been the necessity of treating the free riders of other states. The ultimate shame of the dissent in the eyes of future Americans, the act of radical dishonesty, is the dissent's logic-chopping which ignores a profound effect in commerce in favor of presenting a phony liberty issue.

The nastiness of the opinion glints in the dissent's analysis of why the whole Act must fall once the mandate is thrown out. Here, every step of the way, the Justices claim that the salutory aims of the act, such as the exchanges so many Republican states have refused to create, cannot possibly work without the mandate--so the whole attempt to solve a terrible social problem must go. Little side jabs are made at the pork inserted in the Act, and, most remarkably, there is an invalid, jeering and wholly ideological reference to the number of states who don't want the law (when did the Constitutionality of an act ever depend on its popularity? Not one Southern state wanted civil rights laws).

The Medicaid issue

Frankly, I paid less attention in reading the opinion to Roberts' siding with the dissenters in invalidating part of the Act expanding Medicaid. He held that the Act's great expansion of Medicaid should be optional to the states, and that the federal government can't constitutionally threaten to withhold all Medicaid funding if states don't comply with the expansion. He suggests, as a way of ameliorating the harm, that most or all states will probably choose to opt in, given the generosity of the federal funding.

The dissent would have thrown out the entire Medicaid expansion, instead of making it voluntary--and then found that sufficent grounds to throw out the whole Act independent of the mandate. In another fine example of vicious reverse reasoning, the dissent says that Medicaid expansion won't work if voluntary, because the states that opt out are still paying for the choices the other states make. So an argument which should have supported the mandatory nature of the expansion is used to attack it instead.

It is a novel concept that the feds are not permitted to attach whatever conditions they want to support of the states. In the past, the Supremes have only drawn a line on legislation that forced state officials personally to act in a way repugnant to them. An example of legislation upheld by the Court, which clearly supported the constitutionality of the Medicaid expansion, was a law withholding federal highway funds from states which didn't raise the drinking age to 21. The dissenters unconvincingly distinguish this case because it involved a relatively small amount of money and the Medicaid expansion involves a lot. Bad law is made when you allow dollar amounts to determine judicial principle.

I am sorry to say that my first reaction upon reading the decision was to feel such relief the mandate survived that I didn't care that much about the loss of the mandatory Medicaid aspect. But what this means is that millions of the very poorest Americans will not benefit from the Act if the states in which they reside do not opt in. The conservative majority of the Court, follwing the decades long tradition of the Republican party, have again thrown the very poorest Americans under the bus.


The health care decision is a surprising utterance from the Court on behalf of compassion, community, mutual aid against terrible suffering. However, it is phrased in a way that endorses future developments in the direction of selfishness and abandonment and an essentially medieval America of baronial privilege set against unlimited suffering. The Court is at a crossroads, and the direction it takes will very much depend on which President appoints the next several justices.