My Letter to the Supreme Court on Health Reform

Dear Justices, if you plan to damage health reform, please do so openly, leaving your activist fingerprints on the product.

Before me is a beautiful column by Professor Mark Hall which describes the many logical and legal flaws in the 11th Circuit’s recent opinion declaring the individual mandate to be unconstitutional.

I can’t add much legal insight to what Professor Hall has produced. I confess that I find it laughable that people contest the connection between this mandate and interstate commerce. Long-standing federal policies regarding agriculture subsidies, medical marijuana, minimum wage, and many other matters have similar or weaker claims on the same terrain.

Reflecting years–indeed decades–of legislative fighting, interest group negotiation, and health services research, American government has finally enacted a package to achieve near-universal coverage. The final product includes a fairly weak individual mandate to keep as many people as possible in the insurance pool and to deter free-riding. The mandate may or may not be optimal policy. It’s a plausible and reasonable response to important concerns, negotiated among interest groups and policy experts subject to many months of analysis, congressional hearings, and public debate. This is precisely the sort of matter a restrained judiciary would let presidents and congresses hash out.

Health services researchers, public managers, and politicians from the Heritage Foundation to Mitt Romney to Karen Ignani to Nancy Pelosi to Hillary Clinton to Jon Gruber to Barack Obama have long understood that one can’t provide guaranteed-issue and community-rated health insurance without mechanisms to address adverse selection, some mechanism to prevent people from free-riding and then signing up for coverage when they become sick or injured.

Health care is a unique, $2.6 trillion national enterprise that implicates every level of government. It affects virtually every economic entity and interest group in the country. Fifty million people in America are uninsured. Millions more who require some combination of government and other help. Uncompensated care is a huge national concern. It affects everything from Medicare and Medicaid to the closure of the community hospital. Cost-shifting is a serious concern, too.

The new health care law includes hundreds of billions of dollars in affordability credits to ensure that low- and moderate income people can afford coverage. By all accounts, the individual mandate is important component to arrangements. The mandate is projected to have a significant impact on health insurance premiums, the number of uninsured, and other national matters.

Although this bill is ideological moderate in its details–with provisions reflect many past and present Republican proposals—it achieves the historic progressive goal of near-universal coverage. More important, it is the domestic policy centerpiece of the Obama presidency.

So Republicans wish to kill it, on both ideological and partisan grounds. As a matter of partisan politics, they are entitled to try. Their use of judicial activism is much more hypocritical and problematic. Republican governors have filed lawsuits challenging the constitutionality of the individual mandate. It’s hard to believe that the same suits would have been filed against the individual mandate in Republicans plans of two decades ago.

These same politicians hope that conservative jurists will help them prevail. Given what happened in Bush v. Gore and Citizens United, the current Supreme Court majority might well help them do it. When one cuts through hundreds of pages of majority opinions and dissents—not to mention the vocabulary of decorum barnacled onto an increasingly partisan legal process–that’s really what this is about.

I would ask one thing of the Supreme Court: If you do this, do it openly. Write an opinion whose partisan frame and extreme pre-New-Deal reasoning are plain to the American public. You will wound president Obama. In doing so, you will spark a long-overdue conversation about how both parties could create a genuinely nonpartisan judiciary that commands, and that actually deserves, political legitimacy.

[Cross-posted at The Reality-Based Community]

Harold Pollack

Harold Pollack is the Helen Ross Professor at the School of Social Service Administration at the University of Chicago.