Dave Durenberger, former Republican U.S. senator from Minnesota, is senior health policy fellow at the University of St. Thomas and chairman of the National Institute of Health Policy.
The Supreme Court has made it official: It will decide the constitutional issues raised by those who oppose the new health reform law by the end of its current term in June 2012.
Republicans are hoping Obamacare will help decide the presidential election in their favor, and want the court to uphold a lower court's finding that the law is unconstitutional. Democrats are hoping that the court will disagree on the issue of its constitutionality.
The moderate middle of America wants something done about both the coverage and the cost of health care. The election campaign, not the Supreme Court, will have to help answer that one.
Which means President Obama needs to start soon to defend the law as good national policy as well as a constitutional exercise of the power of Congress. The president taught constitutional law at the University of Chicago. In the Senate, he learned more in his first three years than most Senators about the dysfunctional character of the U.S. health care system. He knows as much about the cost drivers in health care as he does about the need to expand access to care through a reformed health insurance system.
Even if the Supreme Court votes 6-3, as I believe it will, to overturn the lower court, Obamacare is still an issue in the campaign — because its fiscal costs are much more apparent than its fiscal restraint. If the court finds the law or the insurance mandate or the expanded federal authority under Medicaid unconstitutional, then the Republican candidates will have to make the difficult case that they care enough to craft a plan that will actually work.
The challenge to the new law's constitutionality rests on an interpretation of the Interstate Commerce clause. Is insurance an economic activity that significantly affects interstate commerce? If you read constitutional law on the interpretation of the interstate commerce clause, you come quickly to the issue of "the slippery slope." Or: "If the Congress can require Americans to buy health insurance, what else can Congress require of them?"
Judge Laurence Silberman wrote the majority opinion upholding Obamacare in the U.S. Court of Appeals for the District of Columbia. He was appointed by President Ronald Reagan and is one of the nation's most respected conservative judges. In oral argument he asked the government's lawyer, "What limiting principle do you articulate? Would it be unconstitutional to require people to buy broccoli?"
Americans have universal access to broccoli already, thanks to laws and regulations that help orderly markets pursuant to the Interstate Commerce clause. The issue in this case isn't broccoli, but a multi-billion-dollar American health insurance industry on which the entire health care system rests. Which does not provide Americans access to affordable health care, because it can't — because of the dysfunctional economics of health insurance, of health care and of health care policy itself in this country. Something has to change, including the shrinking number of insured Americans and of employers who can afford to provide access to group insurance.
No one questions the huge impact the current system has on affordability, access, quality and cost of health care. Nor does a sane person question whether the nation can afford the assurance of programs like Medicare, Medicaid and employer-sponsored insurance without substantial change. We can no longer assure each other the economic security that comes from a job, a home, savings, investments and insurance. It's a huge problem for all but the richest Americans. And it's a big problem to the American economy in a competitive world.
Obamacare is the result of years of experience in the Congress and in the country with efforts to both expand coverage and contain costs. While elected Republicans refused to provide votes to pass it, many of their fingerprints are all over the law, as are those of the insurance and health care providers. President Obama believes the experts who say an economically efficient health care system can reduce costs by as much as 30 percent, because it introduces both responsibility and accountability into an industry that grew big by not having to worry about either.
The new insurance rules, including the mandate, are critical to making both insurance and health care markets work.
If the new law had been designed to impose a tax rather than a money penalty on non-purchasers, there would be no constitutional authority issue. Congress' power to tax is unlimited. With regard to the "slippery slope" to unlimited interstate commerce power, the Congress itself is and always has been the best check on excess.