If the conservative members of the U.S. Supreme Court live up to their stated disdain for judicial activism, if they base their coming decision on constitutional law and not politics, the court will uphold the constitutionality of the Affordable Care Act's individual mandate.
The high court will begin hearing arguments tomorrow in U.S. Department of Health and Human Services v. State of Florida. At primary issue is the "individual mandate" provision, requiring all adults to obtain insurance or face a financial penalty.
This case is all about politics. Republicans have been thirsting to lay a big legal defeat on the administration since President Obama muscled the health care law through Congress two years ago despite lockstep Republican opposition. Twenty-five other states joined Florida in challenging the constitutionality of the act. In those states Republican attorney generals or governors led the charge.
Ironically, you can trace the roots of the individual mandate to the conservative think tank, Heritage Foundation, and in 1993 Republicans introduced health care bills that contained an individual health insurance mandate. Then, as now, the individual mandate was intrinsic to the goal of primarily utilizing the private insurance industry to assure near universal access to health coverage.
To make the numbers work, insurance companies need a large pool of people paying premiums. If all the healthy people, and particularly the younger people, wait until they get sick to take out an insurance policy, it will ruin the industry. The government will provide subsidies to those who need help paying for the mandated insurance, tax advantages to employers that provide it, and expand Medicaid to cover more of the poor and near poor.
The alternative to not requiring most everyone to obtain insurance is to adopt socialized health care, essentially Medicare for everyone, hardly an outcome Republicans would welcome.
Or, we suppose, the nation can continue with the broken health care system it has now, with 30 million to 40 million people having no access to health insurance. That seems to be the only alternative Republicans offer.
Those challenging this law offer a false argument. They contend that it will be an unprecedented intrusion on constitutional rights to mandate that someone buy a product - health insurance. The fact is that the system already forces people to pay for health care, often not the people getting the health care.
Some without insurance turn to community clinics, which use charitable donations and government funding, but many head to the emergency room of the local hospital. According to the Kaiser Commission on Medicaid and the Uninsured, about 60 percent of uncompensated care comes from hospitals. The result of having so many uninsured citizens is $43 billion in uncovered health care provided annually. But the money has to come from somewhere, so it is shifted to the insured, adding by some estimates about $1,000 a year to the average cost of a family insurance policy.
Hospitals must provide care to people in distress under the Emergency Medical Treatment and Labor Act of 1986. Gee, it appears the mandate for a private entity to pay for health care is not unprecedented after all.
Health care is commerce, accounting for 17 percent of the gross domestic product. And it is fully within the powers of Congress, granted under the commerce clause found in Article I of the Constitution, to figure out how to regulate it to make it fair and so that citizens can access health care.
So unless the Supreme Court wants to practice judicial activism by imposing its desires over those of the elected Congress, it will find the individual mandate constitutional and let the fight continue where it properly belongs - in the political arena.