Below is today’s column in USA Today on the health care decision. Though I support President Obama’s effort to establish health care, I have always opposed the individual mandate as a violation of federalism principles. What is fascinating is how some challengers have heralded yesterday’s decision as a victory of federalism. As shown below, I do not take that view.
The Supreme Court’s blockbuster health care ruling caused a spasm of celebration and recrimination around the country Thursday as the Affordable Care Act was upheld on a 5-4 vote. In reality, the case was never really about health care but federalism — the relative authority of the federal government vs. the state.
I support national health care, but I oppose the individual mandate as the wrong means to a worthy end. Indeed, for federalism advocates, the ruling reads like a scene out of Julius Caesar— a principal killed by the unseen hand of a long-trusted friend. Brutus, in this legal tragedy, was played by Chief Justice John Roberts.
The opinion starts out well. Roberts defends federalism by ruling that the administration exceeded its authority under the commerce clause. Just as many readers were exalting in the affirmation of federalism, however, Roberts struck a deadly blow by upholding the individual mandate provision as an exercise of tax authority. Federalism rose and fell so fast it didn’t have time to utter, “Et tu, Roberts?”
Roberts joined the four liberal justices in upholding the law. He clearly believed that the law was constitutional, and he refused to yield to the overwhelming public pressure. Indeed, he must have known that people would view this as a betrayal of states’ rights, but he stuck with his honest view of the Constitution.
None of that will diminish the sense of betrayal. After all, Brutus acted for the best reasons, too. The health care case was viewed as the final stand for federalism. If the top court could make a federal issue out of a young person in Chicago not buying health insurance, it was hard to imagine any act or omission that would not trigger federal authority. Roberts agreed that this was beyond the pale of federalism: “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.”
But no sooner had Roberts proclaimed his love for federalism than he effectively killed it. Roberts held that the individual mandate still fell squarely within the taxing authority of Congress. If so, all those “broccoli” questions asked by Roberts and other justices simply move over to the tax side. If Congress can “tax” people for not having health insurance, how about taxes on people who don’t have cellphones (as Roberts asked)? Just as there was no clear limiting principle in the commerce clause debate, there is a lack of such a principle in the tax debate. Instead, Roberts simply says the individual mandate is supported by a “functional approach” that has long allowed federal taxes to “seek to influence conduct” by citizens.
Roberts did rule that states could not be threatened with the loss of Medicaid funds if they didn’t want to be part of the program. That was an unexpected protection for the states facing threats from Congress. But this still leaves citizens of every state subject to the penalties of the federal government for failing to get insurance. Moreover, in mandating the right to opt out, Roberts rewrote the law, precisely what most justices didn’t want to do. Before the law was enacted, Congress refused to add an opt-out provision. After the justices complained in oral arguments that they did not understand the massive law, this judicial amendment could increase health care costs and undermine the uniform national character of the program.
Given such problems, President Obama might have been better off losing before the court than accepting this victory from the hands of Roberts. In the end, the court’s decision could be viewed as a success only to the extent that a crash landing is still considered a landing.
It is hard to see who will be the ultimate winner from this decision. But the biggest loser is federalism. Roberts lifted it up only to make it an exquisite corpse. In that sense, the decision reads like the funeral speech of another character in Julius Caesar. To paraphrase Mark Anthony, Roberts came to bury federalism, not to praise it.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
June 28, 2012
This video shows what we can do when we put our minds to a difficult problem: Seven Seconds of Terror …
Let’s make it work.
I think Roberts changed positions for a larger ideological reason: mainly, to preclude any further arguments for a single-payer system. Mainly, this is the health care reform: a conservative program (Romneycare) that functions as a corporate handout. If it wasn’t in the health care industry’s best interest, it never would have made it out of Congress.
Tony C. 1, June 29, 2012 at 9:09 am
@Dredd: In the taxes we pay for roads, we do not have that choice, so I don’t see why the mandate is worse than other mandates in the law.
The difference here is that private, for-profit insurance companies have an inherent conflict of interest that cannot be resolved. No matter how you cut it, the more they pay for care, the lower their bottom line, and for-profit companies have to focus on the bottom line.
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What happened to market factors such as competition between companies for clients and customers based upon better performance.
Plus, there will be government oversight to make sure 80% of the premium income goes into health care, not stocks and bonds.
Your argument is fine, and could end up being the reality, it is just that we all have to try to make it work now, and make it work better than it has in the past.
Those who have insurance are not going to see any tax on them for not acquiring insurance. That is left to the minority who have that issue to deal with. And they have until 2014, as do the insurance companies who want their business.
We are now like the other industrial nations who have been doing this for quite some time. Maybe the best example out of them is the one to take note of, for clues and guidelines.
Are we are being too easy on the decision:
(Rep. Mike Pence). One wonders if Saudi Arabia is behind some of the ruling?
TonyC,
Based on my impression of history, I do not regard any of what you wrote as hyperbolical either.
Such happens even to well written agency enactments.
We have seen them with EPA. We will likely see them in the comsumer financial agency, etc.
My point was to like some others not named paint a picture of ideality.
The difference in my painting is that it is very near the reality here in Sweden.
The pension system for all employed blue collar workers works according to this model.
Until asked I won’t bother taking more time, but this type of system is common here. Sometimes ineffectual, sometimes not.
@Dredd: In the taxes we pay for roads, we do not have that choice, so I don’t see why the mandate is worse than other mandates in the law.
The taxes you pay for roads are collected by the government, the roads to be built are decided by government employees that have no vested interest in the profits those roads will generate (through reduced transportation costs and/or easier access to markets), and the job itself, even though typically executed by private companies, is overseen by professional government staffers on fixed (modest) salary with a mission of getting the most road for the buck.
If the government taxed us $5000 a year (that would be the average, but progressively as part of income tax) and used those funds to provide health care through existing hospitals in an operation overseen by government employees, with no conflicts of interest in providing service, then it would be like roads.
The difference here is that private, for-profit insurance companies have an inherent conflict of interest that cannot be resolved. No matter how you cut it, the more they pay for care, the lower their bottom line, and for-profit companies have to focus on the bottom line. A second difference is that a for-profit company can go bankrupt, and this creates a moral hazard (a situation in which one person’s decisions on risk can cause another person to bear the costs of the risk going bad), because if the company goes under the people it insures are left without the coverage they have been paying for, and are older, and sicker, and their insurance with a new company will cost them more (they have lost the equity of being a decades long customer, typically the young pay more in premiums than their risk profile would warrant, in return for “equity,” meaning lower premiums than their risk profile would warrant when they are aged.)
Government agencies do not go bankrupt, and they do not need to take risks to stay afloat, and they have no inherent profit motive to pay for as little care as possible.
The mission of a government agency is to do as much good as possible within their budget and overseen by Congress. That does leave them with making some decisions about the value of care, but they make those decisions objectively without regard to their personal fortunes, because their personal fortunes are not on the line. A decision to end heroic action to save one person’s life is made in the proper currency of the greatest good; heroic action ends when the cost of it is other lives that could have been saved.
The lack of a profit motive also means government agencies have no built in drive for growth. If you supply water to the community, your “investors” are the citizens. What they want is all the clean water they need at cost. They do not demand you grow your water business to serve more people and provide them a better ROI, or distribute bigger dividends. What they want is for you to be as big as you need to be and no bigger, to spend as much as you have to spend and no more, to charge as little as you can but no less, and to subsidize only those they find worthy, like the poor, schools, charities, and so on.
That is how health care should be; but no demand for profitability should ever be part of the formula. (That does not apply to doctors, nurses, orderlies, technicians, clerks and all the other staff; they should be paid market rates, meaning whatever it takes to staff the hospitals with qualified voluntary applicants).
So now they can pick up all the homeless people and take them to court and fine them. And if they can’t pay their fine, throw them in jail. Well, they won’t be homeless anymore.
Tony C. says exactly what I have been thinking as I mull this decision: “The problem here is in definitions. Punitive taxation of citizens for failing to buy a product from for-profit companies that have proven time and again and continue to prove every day that they act overwhelmingly in their own profit interest before the public interest does not fall under the definition of “general welfare of the United States.”
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One of the problems is a for-profit health care system which works hand in glove with a for-profit third payer system. When government acts as an enabler and enforcer for the for-profit system by mandating profits, then we have a real problem. As I see it, the only solution is to have a single payer system, and as it is set up right now, even Medicare/Medicaid is not a true non-profit.
My oldest daughter is on Medicaid due to being disabled. Her Medicaid insurance carrier is one of the worst offenders at being stingy about paying for services. So stingy in fact that many physicians, hospitals and nursing homes refuse to take patients who have her form of Medicaid–they cannot get paid, or if they do, it is only after an extended battle with some beancounter clerk in an office halfway across the country.
I know that many of the old gobblers in the Congress are old enough to have Medicare. If they had to fight for care and needed medical services like the rest of us, the law would be changed in about a week.
@goldmans: I believe Turley’s point was that if a “tax” can accomplish everything that is not allowed under the Commerce Clause, then what would be the point of the Commerce Clause?
This is a simple point of logical analysis. The Constitution was not written in a hurry, every line was debated and picked over by the founders. The fact that both the power to lay taxes and power to regulate Commerce are in the Constitution means they thought there was a distinction, and limits on both. If the founders had intended for any power they granted to make the Federal government all-powerful, they would have found phrasing that simply said that.
They did not, and therefore, it is inappropriate to simply claim that if you can’t do it under the Commerce Clause you can always just do it as a tax.
As for the cellphone, by Robert’s logic, couldn’t the government say that if you don’t have a cellphone with an unlimited data plan you will be taxed $5000 at the end of each year? How would that not be a “mandate”?
The problem here is in definitions. Punitive taxation of citizens for failing to buy a product from for-profit companies that have proven time and again and continue to prove every day that they act overwhelmingly in their own profit interest before the public interest does not fall under the definition of “general welfare of the United States.”
Health care costs and availability of such care are major NATIONAL crises. Many companies cannot afford the premiums and those in need cannot have access to it. Gone are the days when health care premiums were a insubstantial cost for employers. They now represent a very real challenge to profitability. What are the reasons? For-profit hospitals to be sure and so too doctors seeking to maximize profits by owning testing labs and the like. But it is also true that the availability of more costly tests and procedures have saved more lives than ever before. In this environment something had to be done on a national level lest we see health care reserved only for the rich and the poor left to seek emergency room triage or rely on public programs. Those working poor who don’t qualify for pubic programs are left to fend for themselves and about 25,000 die each year as a result of little or no health care.
If we had 25000 uniformed citizens (like police, fire, or rescue) dying a year, do you think there would be any call for restraint in addressing the problem on federalism grounds, or any other grounds for that matter? I’ve agreed with OS and others that the commerce clause would provide constitutional sanction for this type of congressional relief but the real point is that this is a problem that needs to be addressed now. While the purists among us may wish for pristine application of principle, the simple fact is that necessity creates modification in law. As has been rightfully said, our constitution is not a suicide-pact and while principle is critically important it must yield to circumstances that involve even more vital issues.
As I’ve said, Roberts was positively Marshall-esque in trying to preserve the principle of federalism while still permitting a congressionally approved national solution to a national problem. It is hyperbole, in my view, to conclude that both federalism or the nation’s interests were slain by this decision. The simple fact is that it is a false choice to decide between the two and while these bedrocks may have been chipped by the decision, the foundation still stands.
“The opinion starts out well. Roberts defends federalism by ruling that the administration exceeded its authority under the commerce clause.”
There is a proper way to construct and construe opinions.
One important aspect is to take note of instances of dicta:
(Wiki, dictum). The issue of the commerce clause as applied to the health care law, it would seem in the present case JT posted about, is:
(ibid, bold added). That noted, the case was about those who will not have health care insurance in 2014, when the law takes effect, and what will happen to them at that time.
They have a choice of whether or not to purchase health case insurance, but should they chose not to, the IRS will tax them to help defray the costs other citizens are paying.
In the taxes we pay for roads, we do not have that choice, so I don’t see why the mandate is worse than other mandates in the law.
Mandates that are placed on health care corporations.
For example, one section requires that insurance companies spend a minimum 80% of their income, from premium payments, exclusively on health care.
That mandates that only 20% can be used for administration costs and the like, so it is in the direction of health care efficiency.
I am buying some fancy mustard today, that huge warm pretzel Roberts baked up, has to be mighty tasty.
Do you really believe, Professor Turley, that Congress has no power under the taxing power to impose taxes on individual actions or failures to act? None of the Justices took that position, nor could they: “The Congress shall have Power To lay and collect Taxes…to… provide for the … general Welfare of the United States”. The dissenters only took issue with whether this was, in fact, a “tax”. None of them questioned whether Congress has the power to impose such a tax. As for Roberts’ cellphone question, he asked this solely in the context of the commerce clause (whether there was a “market” for healthcare as well as for emergency services); it had nothing at all to do with the taxing power. And as for federalism, remember that the federal power to collect taxes was one of the crucial powers missing under the Articles of Confederation; this federal taxing power is exactly what our constitutional federalism provides for.
Alice in Wonderland seems appropriate……
@Idealist: Our government has no interest in representing us; their inability to negotiate on our behalf was intentional. That is the way the insurance companies wanted it. We have to buy their product, they retain the lion’s share of control over price and terms and coverage, all we got are a few caveats, which I believe in time will be allowed, by the purposeful inattention of the government to scheming on the part of the insurance companies, to decay into worthlessness.
I am quite serious, btw, I do not think any of that is hyperbolic at all.
Here is an observation made by myself at the “Supreme Court upholds….-thread. It is pertinent here also, as we must deal with the possible fallout effects.
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(corrected and revised 2012-06-29)
Have we not gotten, in effect, a single-payer system for those who have NOT bought health insurance?
And is it not so that it is a de facto tax, ie government money, which will be paid to the insurance companies in compensation for the coverage?
Then why does that not give the government, like all contract signers, the privilege to negotiate the terms of the contract? To achieve such things we’d all like to see.
And also to exert a pressure to call this insurance of a group, and achieve a price——better than most employees/employers can achieve singly.
One bad point of the present system is that it creates an asymetric situation between the individual covered and the insurance company. ie two unequal parties.
Can not the new situation result in two improvements:
One–the government acts as a buffer in the interests of the persons covered.
Two–the government forced creation of an employer association solely for the purpose of representing themselves as legal parties WRT an insurance counterparts, medical counterparts and pharma couunterparts. The employer association can slso assume a responsibility to work for the interests of their employees in thise matters.
Then I think we would have a better system.
The governments power to declare terms, such as in saying that contraception or other women’s care would be borne by the insurance companies are NOT included here as I have no idea how that works
This is a paper written for general consumption and should be judged in the light of that. The expressions employed which might be considered as ones with propagandea effect should be ignored as it was not done as a blog here.
Having not read any major item on the Professor’s position on federalism, it was particularly interesting.
As to federalism according to Roberts and JT:
“Roberts agreed that this was beyond the pale of federalism: “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and — under the government’s theory — empower Congress to make those decisions for him.””
I found myself exclaiming: “I thought that that was what we already had, Congress making decisions for what toxins I should tolerate, etc. Where does my purvieu end and the public begin?”
For those who would like to read an extreme expression of federalism, I suggest:
http://www.sobran.com/articles/tyranny.shtml
Written by one who felt that we should return to requiring all expansions of powers to requre approval in the form of Constitutional amendment and not simply laws at Congress’ discretion.
Bu unfamiliar as I am with legal matters, I don’t understand how Roberts can put a abating hand on Congress prerogative to withhold Medicaid monies from states who select to not participate “in the program” (ACA?). I mean simply, how did this come up for a ruling in the first place? Congress is always putting in carrots and sticke in every legislation pertaining to other issues. Was this up for judgement as to being part of the whole law? In which case, OK.
And a simple question: If this is one expression of federalism, what is the anti-federalist position called in daily speech? I did not find it mentioned here by name.
How does one fix our rampant corporate control of health insurance that is driving this nation into bankruptcy? This crazy quilt patchwork of insurance was never a good system:
http://video.msnbc.msn.com/the-rachel-maddow-show/48006553#48006553
“O judgment! thou art fled to brutish beasts,
And men have lost their reason. Bear with me;
My heart is in the coffin there with [Federalism],
And I must pause till it come back to me.”
– Marc Antony, Julius Caesar, Act 3, Sc. 2, by William Shakespeare
I’ve now seen
Conservative Richard Posner at Slate
Liberal Paul Campos at Salon
Libertarian Ilya Somin at Volokh Conspiracy
Liberal Richard Friedman at CBS
all agree (dogs and cats living together) that it looks as though Roberts changed his position mainly for political reasons, that is to strengthen how the public sees the court, or to make sure his court was not the first in 75 years to throw out a significant piece of legislation. And several believe he was somehow pressured by the Administration to make this change.
Why should the people have any faith that we are a government of laws, and not of men when the Chief Justice has one thumb on Lady Liberty’s scale and the other unseen under her … steadying her?