Wednesday, March 28, 2012

Did the Supreme Court questions indicate that the individual mandate will be overturned?

A number of media reports strongly suggested or implied that the individual mandate of the health care law would likely be overturned based on the questions by the five non-liberal justices that did not indicate any support for the individual mandate. Sorry, but it is not so simple. I spent a lot of time in Washington back in 1998 to 2003 and one of the consistent messages I heard from insiders was that questions from a judge or justice are not a reliable indicator of how they will ultimately decide. Sometimes they simply want to get information, sometimes they simple challenge an assertion to get a deeper response from counsel, and sometimes they simply play devil's advocate to see how well counsel has thought through their arguments.
Sure, the media and commentators desperately want to "read the tea leaves" and report the news before it even happens, to handicap the horse race, but sensible citizens are best advised to ignore all of that and simply wait for the official judgment and then analyze what the justices actually say in their formal decision.
That said, Chief Justice Roberts probably does hold the deciding vote. I'm not going to predict that he will uphold the individual mandate, but if he doesn't, I predict that he will rule narrowly and on technical issues. I predict that he won't rule that no individual health insurance can ever prevail, but simply this one, the way it was formulated, stretches just a little too far. In other words, that if Congress were to reformulate the individual mandate it could pass constitutional muster. That might be enough to kill the individual mandate until the day that liberals have a stronger majority in Congress, but at least the door would be open to "Health Care Reform II", which I have always advocated – the current law is simply a steppingstone to more comprehensive and sustainable health care form.
But all of that said, I do believe that there is at least a 50/50 chance that Roberts will uphold the individual mandate, but only in the narrowest of terms.
Personally, I think the reason the mandate might stand is that it actually doesn't "force" people to buy health insurance. It does not criminalize the failure to purchase health insurance. It gives us a "choice." The "penalty" is a mere "tax", and a fairly modest tax at that. In fact, the penalty is quite modest in the initial years and only grows to a modest level in the out years. If the individual mandate had in fact criminalized non-compliance or imposed "excessive" or "onerous" penalties, that would be a different story, but the simple fact it that it does not. And, almost as importantly, because our health care system does in fact convey a "right", the right for anybody to walk into the emergency room of a hospital and get care on demand anywhere and anytime, it is rather hard to argue that the "penalty" is somehow an unfair levy needed to sustain a system that is already in place, even before the health reform law was enacted.
I personally am one of the people square in the crosshairs of the individual mandate – I neither have health insurance nor do I want it. I do not favor the concept that I should be subsidizing the health care of people who make bad lifestyle decisions, such as smokers, the obese, the skateboarders, the snowboarders, et al. Nor do I have extreme health care such as organ transplants, extremely expensive experimental treatments, or extreme and expensive "end of life" care which effectively bankrupts the system simply to give a person a few more months or a year or two of life when everyone can clearly see that "your time has come." My intentions are to pay the penalty instead, and I am okay with that. Besides, who knows, maybe a few years from now I may even decide to purchase some minimal health insurance to handle catastrophic health issues. Or, maybe mass non-compliance will finally force the health insurance companies to offer fair and reasonable policies that actually do appeal to people like me.
For now, I believe that Congress did a great job of crafting an individual mandate in such a way that "strongly encourages" people to purchase health insurance without excessively penalizing or criminalizing them for non-compliance.
For now, let us give Chief Justice Roberts the benefit of the doubt and look forward to him making a wise decision.

-- Jack Krupansky


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