Calling “e” un-Obamacarconstitutional is all the rage amongst the more aggressive leaders of the Republican Party. The accusation addresses several partisan objectives: it aims to delegitimize the other side; it skirts complicated legislative details, including benefits as well as costs; and it asserts that they are on the side of flag and country. After all, being un-constitutional is literally un-American. So how could it possibly be in our interests?
The life cycle of this feisty stratagem may be drawing to a close.
The constitutional challenge attacks the cornerstone of the Patient Protection and Affordable Care Act—the requirement that all individuals purchase basic health insurance. Laurence Tribe, a professor at Harvard Law School argues with great confidence that the Supreme Court will side with Obama:
“Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. . .
“Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.
“In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.”
Tribe doesn’t argue that judicial or congressional conservatives are obliged to like what the Democrats are doing—only that it’s constitutional. Twentieth century experience provides legitimates reasons to worry about expanding the role of federal governments in the delivery of basic social services. However, the courts have generally left it to elected politicians to define the appropriate place of federal, state and individual responsibilities.
When the constitutional arguments run their course, Republicans will have to start talking about health-care again. Simply promising to repeal the entire act will lose considerable credibility if the court up holds its constitutionality. Furthermore, will the majority of Americans who believe in federal reform in the provision of health-care believe that once Republicans have torn down what Obama has put in place they’ll implement a credible alternative?
Nobody goes to the political center easily these days. However, Republicans would be well advised to concentrate on finding practical, even conservative, ways for the federal government to respond to nation-wide concerns for accessible, affordable health-care. Ironically, they might have another look at the Canada Health Act.
Setting aside public administration, it simply transfers monies to the provinces on behalf of four widely popular health delivery guidelines: comprehensiveness, universality, portability and accessibility. While provincial health plans are often called socialistic by American conservatives, the Canadian federal government’s role is quite light-handed compared to what is already the case in Washington.