Not surprisingly, today's debut Supreme Court argument over the so-called "individual mandate" requiring everyone to buy health insurance revolved around epistemological niceties such as the meaning of a "tax," and the question of whether the issue is ripe for review.
Behind this judicial foreplay is the brute political fact that if the Court decides the individual mandate is an unconstitutional extension of federal authority, the entire law starts unraveling.
But with a bit of political jujitsu, the President could turn any such defeat into a victory for a single-payer healthcare system -- Medicare for all.
Here's how.
The dilemma at the heart of the new law is that it continues to depend on private health insurers, who have to make a profit or at least pay all their costs including marketing and advertising.
Yet the only way private insurers can afford to cover everyone with pre-existing health problems, as the new law requires, is to have every American buy health insurance -- including young and healthier people who are unlikely to rack up large healthcare costs.
This dilemma is the product of political compromise. You'll remember the Administration couldn't get the votes for a single-payer system such as Medicare for all. It hardly tried. Not a single Republican would even agree to a bill giving Americans the option of buying into it.
But don't expect the Supreme Court to address this dilemma. It lies buried under an avalanche of constitutional argument.
Those who are defending the law in Court say the federal government has authority to compel Americans to buy health insurance under the Commerce Clause of the Constitution, which gives Washington the power to regulate interstate commerce. They argue our sprawling health insurance system surely extends beyond an individual state.
Those who are opposing the law say a requirement that individuals contract with private insurance companies isn't regulation of interstate commerce. It's coercion of individuals.
Unhappily for Obama and the Democrats, most Americans don't seem to like the individual mandate very much anyway. Many on the political right believe it a threat to individual liberty. Many on the left object to being required to buy something from a private company.
The President and the Democrats could have avoided this dilemma in the first place if they'd insisted on Medicare for all, or at least a public option.
After all, Social Security and Medicare require every working American to "buy" them. The purchase happens automatically in the form of a deduction from everyone's paychecks. But because Social Security and Medicare are government programs financed by payroll taxes they don't feel like mandatory purchases.
Americans don't mind mandates in the form of payroll taxes for Social Security or Medicare. In fact, both programs are so popular even conservative Republicans were heard to shout "don't take away my Medicare!" at rallies opposed to the new health care law.
There's no question payroll taxes are constitutional, because there's no doubt that the federal government can tax people in order to finance particular public benefits. But requiring citizens to buy something from a private company is different because private companies aren't directly accountable to the public. They're accountable to their owners and their purpose is to maximize profits. What if they monopolize the market and charge humongous premiums? (Some already seem to be doing this.)
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