U.S. Supreme Court Justice Clarence Thomas
So, the defining legal argument over health-care reform comes down to
whether the federal government has the power to determine WHEN
individuals will be charged for the health care services that they will,
over the course of their lives, require.
After the Supreme Court's oral arguments about the Affordable Care
Act on Tuesday, that timing question appeared to be the single
constitutional question left to answer, but it obviously was a big one
because the Act would require people to sign up for insurance and not
wait for a medical emergency to get it.
Everyone in the courtroom seemed to agree that Congress has the
authority to require Americans who are otherwise uninsured to buy
insurance at the point of sale -- i.e. when they are in the emergency
room and in need of medical care. That authority is clearly granted to
Congress under the Commerce Clause of the Constitution -- you are
transacting, therefore you can be regulated. (That appeared to be the
consensus, though Justice Clarence Thomas, as usual, didn't say
anything, so it's hard to guess what he's thinking.)
In other words, this is not a question over whether you interpret the
Commerce Clause as granting a broad or a more limited power to
Congress. The issue is whether Congress has the authority to require
that individuals buy insurance before they need the medical care that,
everyone knows, they will require at some undetermined point in the
future.
It's a question of timing. It's a "when" question, not an "if"
question. Plain and simple. That's because the health care market,
unlike every other market, is:
--Universal: Virtually all of us will need medical care at various points in our lives;
--Unpredictable: We have no way of knowing when we'll need medical care; and
--Expensive: The cost of providing medical care has skyrocketed to the
point that most Americans simply can't afford it without some form of
insurance. And when Americans can't pay for their own care, those costs
get shifted directly to the rest of us who do have health care
insurance.
So, when do we force Americans to pay for their health care? Is it
before they get sick, or after they get sick? That's the only
significant question left for the Supreme Court to decide, pertaining to
the individual mandate. But it may be the issue that the five
Republican justices cite to gut the law and essentially send the country
back to square one in the health-care debate.
Everything else -- including broccoli -- is an intellectual sideshow
that serves to set the outer limits of the theoretical debate over
boundaries of congressional authority. They are perhaps entertaining
debates, but they are not germane to the Affordable Care Act, which
makes no mention of broccoli and which hinges on the use of an
individual mandate to rationalize a market that is, everyone agrees,
badly malfunctioning. (Though, again, we're not exactly sure where
Justice Thomas stands on anything.)