published Thursday, March 29th, 2012

The high court's challenge

The Supreme Court's dissection of the Affordable Care Act over the past three days was far more enlightening about the activist partisan bent of the so-called conservatives on the court, than it was about the sense of reason, the common good and the broad justice that is presumed to lie at the heart of the court's mission. Justice Antonin Scalia, regarded as the intellectual light of the conservatives' five member majority, made that dishearteningly clear with his witless comparison of the individual mandate to purchase health insurance to a mandate -- if the government so wished -- for Americans to buy broccoli.

The Justices were thought ready to debate the wisdom and correctness of a thoughtful application of the long-standing federal interstate commerce clause to bring order, humanity and fair market standards to an out-of-control, and frequently inhumane, American health insurance system -- a system that labels providing care a "medical loss" to its bottom line, and that has long used "pre-existing conditions" to deny care and let clients die.

Justice Scalia and other conservative justices made light of that core purpose. They also regularly ranged far afield from the core issue before the court: If the nation's health care system is required to provide costly care and stabilization to all uninsured comers -- victims of rock-climbing and motorcycle accidents, heart attacks and gunshot wounds, comas, crisis births and severe burns -- is it not reasonable under the commerce clause to impose a rational system that properly spreads the costs and burdens of mandatory care as equitably as possible.

Viewed in that respect, the mandate for all non-poor Americans under 65 years of age to buy insurance can easily be seen as a reasonable application of the federal commerce clause. If farmers can be told how much wheat they can grow to keep the agricultural commodities market stable, as the 1942 landmark ruling on the commerce clause held, why shouldn't citizens be required to purchase health care insurance on the grounds that virtually all Americans will at some time use the health care system, and that it's become their legal, fundamental human right to do so.

The Affordable Care Act, moreover, would provide significant subsidies, and health care equity, to both the near poor and to the broad middle class, many of whom are underinsured, or uninsured. Indeed, just 56 percent of American workers are offered a health insurance option by their employers. Many of those policies are skeletal, with extremely high deductibles and low coverage limits. Other Americans face unbearable exclusions for pre-existing conditions, or unaffordable policies, and more than 50 million Americans are uninsured, because Medicaid only covers the poor.

If the high court's pampered ideological conservatives cannot fathom the medical hardships that one out of three Americans face, or their high rate of personal bankruptcies due to medical costs, it should recognize the gross inequity of an American health care system that unlike all other advanced industrial nations, fails to provide a universal health care system that parallels our legal right to emergency care.

This conservative-dominated court also should consider its moral responsibility to honor the legislative process that finally enacted the Affordable Care Act, and that, in 2014, will provide sufficient subsidies to help most every American purchase health insurance. It also should respect the standard severability clause that would allow the other parts of the ACA to take place, including the creation of regulated state insurance exchanges that would give all Americans fair choices and minimum comprehensive benefits.

These exchanges would provide flat-rate premiums, multiple plan options, a floor on coverage, a complete ban on pre-existing conditions, no limits on annual and life-time coverage, and personal freedom, at last, to buy affordable care. The Supreme Court ideologues have no grounds to deny that legislative purpose.

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joneses said...

The 4 liberal activist Supreme Court Justices, Breyer, Keagan, Sottomayor and the most activist Ginsburg will always shred the United States Constitution and vote for the most activist liberal way on all issues. Their liberal activism has been proven time and time again. The activist Supreme Court Justice Kagan should actually recuse herself as she helped prepare the defense of the unconstitutional Obamacare. If these activist liberal justices vote to uphold the unaffordable Obamacare the freedom of the American citizen will be forever ruined. This will open the door to the government to tell us were we can live, work, be educated, what we can buy. The government will be able to dictate what we can do with every aspect of our lives. This is what the liberal agenda is all about, total control of every aspect of everyone's lives.

March 29, 2012 at 6:20 a.m.
conservative said...

The writer: " the common good and the broad justice that is presumed to lie at the heart of the court's mission"

The reality: The court's mission is to rule on matters of Constitutional law not this Socialist writer's wish list for the "common good."

March 29, 2012 at 9:24 a.m.
shifarobe said...

It's not the justice's job to pick apart what they perceive to be worth keeping. They're not legislators! It's either Constitutional or not! They're not there to salvage anything. I listened to Ginsberg whine about that we can't just throw the whole thing out? Why not? How could such a stupid, idealogical twit be on the supreme court????

March 29, 2012 at 10:23 a.m.
gjuster said...

Harry - You bring up the Wickard v Filburn decision as your way of justifying the constitutionality of Obamacare. That was the Supreme court decision that started the slide downhill towards congress having absolute powers. That decision said that you couldn't grow wheat on your own land for your own use. How dumb is that. It doesn't matter how much you might like something - if it's not constitutional then Congress can not do it. It would be nice if our government actually followed the rule book.

March 29, 2012 at 10:24 a.m.
Walden said...

This has truly been an amazing week, and one that will be viewed as a watershed for the American experiment. The Supreme Court should (and I believe will) rule that the individual mandate is unconstitutional. Your emotional arguments within this editorial are simply meaningless in the context of what this week was about. Monday through Wednesday of this week had nothing at all to do about the healthcare debate -- those three days of oral argument were about one thing, and one thing only -- does the Federal Government have constitutional standing to compel a citizen to enter into a contract. The truth is, it doesn't take a Constitutional scholar to answer that question.

March 29, 2012 at 3:20 p.m.
chatt_man said...

Shifarobe is correct. It is not the Supreme Court's job to "rebuild" it, or to fix what's not constitutional. They are not legislators. It doesn't have a clause that allows it to be partitioned, and if any part of it is found unconstitutional, it has to go back to the legislators. They would decide what is kept and what is discarded and/or changed.

And to Ginsberg's comment... that's the reason she shouldn't even be a Supreme Court judge, she votes by her feelings and not by the law.

March 29, 2012 at 4:20 p.m.
sage1 said...

Health care reform is much needed in this country. But ABSOLUTELY NOT done in the fashion that Obamacare was fabricated and run through like a freight train. Something as important to the good of us all should not be rushed through like this bill was just to get something done by a deadline that some politician has set to fluff his ego. Yeah I'm talking about Obama The KING of narcissist.

The healthcare systems that have FAILED should be studied (Canada, Europe) with the weaknesses identified so that we do not make the same mistakes they did.

March 29, 2012 at 11:35 p.m.
joneses said...

I find it absolutely ridiculous that again we have another branch of government, the Judicial Branch, voting on something they have not read nor have a desire to read. Remember when pelosi said, "we have to vote for this bill so we can see what is in it"? It sounds like pelosi has some influence within the Supreme Court.

March 30, 2012 at 5:53 a.m.
joneses said...

No one read this bill before they passed it. They said Max Baucus wrote it, he said no. Then they said "staffers wrote it, Then finally at the end Baucus said we "hired a professional". Who was that Professional?? A lobbyist and lawyer for the SEIU, Acorn and George Soros. Look it up. The outline was called "Stand up Straight" written by Robert Creamer. It's stated purpose was for the government to gain control of 1/6th of our economy and unionize the entire healthcare industry. This bill was not voted on because Obama, Pelosi and Reid care about everyones health care. It's sole purpose is to give the government, Socialist, more power over the population of America.

March 30, 2012 at 6:40 a.m.
Walden said...

joneses, the Supreme Court does not need to read the bill to make a judgment on the constitutionality of the individual mandate.

March 30, 2012 at 9:54 a.m.
Jack_Dennis said...

TFP's pronouncement is not an editorial; it's a manifesto. I'm thinking the court should rule on constitutionality, not "feel good" legislation. Obamacare is horrible legislation. Most know it. Be done with it and start over.

March 30, 2012 at 10:10 a.m.
joneses said...

Walden,

Correct.

March 30, 2012 at 3:13 p.m.
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