Wednesday, March 28, 2012

The ACA oral arguments

They are underway at the Supreme Court. And apparently the pro-ACA side struggled with some of the questioning from the justices, particularly the limiting principles issue which I've talked about before. As we could have predicted, the broccoli question came up. So I wanted to give it a shot to see if I can make a better argument than the gov't did yesterday.

I think it was Scalia that asked, if the gov't can force you to buy health insurance, what can't it force you to do?. First of all, even conservatives like Scalia will admit that the gov't has the power to regulate interstate commerce. That's plainly in the constitution. I don't hear anyone arguing that the health insurance market doesn't fall under interstate commerce. So it would appear that the gov't has some sort of power to regulate said market. Why can the gov't exert the specific power it's putting forth in this case, that being a mandate that fines you if you don't acquire health insurance?

In short, the gov't has a compelling interest in reducing the cost of health care. Hospitals are forced by law to treat all emergencies (I'm surprised this power hasn't come under attack), even those consisting of people without insurance. In some manner, those costs of treating the uninsured are passed onto people with insurance, thus driving up their health care costs (I'm assuming the hospital passes those costs onto it's paying patients, which has to get paid for by the patient's insurance company, which takes this into account when deciding how much the patient pays for their service).

So a solution to that problem would be for all of those people who don't have health insurance to buy health insurance. But because they either don't think they need it or can't afford it, millions of people don't. And as we can see from the facts, a lot of those people end up affecting health insurance costs. This has been going on for many years. Yet neither individuals on their own nor health insurance companies and hospitals have found a solution. And this is a problem that needs a solution because health care costs are extremely expensive. If those without insurance were capable of paying the costs out of pocket this wouldn't be a problem. But many can't and if they don't just pass on the costs to everyone else, they end up going into massive debt in order to pay it off.

The broccoli point is meant as a way to say that the gov't can force you to be healthy in order to reduce health care costs. But forcing people to eat broccoli is not a reasonable way by which the gov't can address the issue of cost. Eating broccoli is far from a certain way to maintain a healthy diet and lifestyle. Even if it was, maintaining a healthy diet and lifestyle is not a certain way in which you can avoid having to enter into the health care market. You can be the most healthy person alive but have to go to the hospital because of a car accident or some sort of genetic disease. Or you could just get old and need some end of care procedures, which are typically very expensive.

So to quickly wrap up because it's late and I'm tired, the gov't can't force you to eat broccoli because it's not a reasonable way in which to prevent you from entering the health insurance market. And the act of forcing people to eat broccoli would not address the problem of costs. These boogeyman examples of gov't power conservatives are trotting out aren't narrowly tailored to meet the government's compelling interest. Mandating health insurance is narrowly tailored towards that interest and thus probably should be a constitutional power of congress.

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