Supreme Court Arguments – Day 2, Part 2

I want to spend some time today examining what I think is a most interesting demonstration of an illogical position on the part of opponents of the Affordable Care Act, and I want to visit the topic through the comments of Justice Ginsburg.

Justice Ginsburg said “I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare/Medicaid type model. And so, it seems a little ironic to suggest that that counts against it.”

Later, she continued “Congress, in the ’30s, saw a real problem of people needing to have old age and survivor’s insurance. And, yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. So, they required everyone to contribute. There was a big fuss about that in the beginning because a lot of people said — maybe some people still do today — I could do much better if the government left me alone. I’d go into the private market, I’d buy an annuity, I’d make a great investment, and they’re forcing me into paying for this Social Security that I don’t want. But that’s constitutional.”

She made the point one last time, saying “There’s something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that’s fine, but if the government wants to get — to preserve private insurers, it can’t do that.”

This is, honestly, mind-boggling. First of all, there’s the interesting fact that the individual mandate was originally a conservative idea. Born by some of the brilliant minds at the Heritage Foundation, the idea was to move towards a model of personal responsibility: by requiring everyone to purchase their own health insurance coverage, we’d finally stop subsidizing the uninsured. Then, when this principle was actually passed by Democrats, the conservatives moved to attack the legislation on the grounds that people were being “forced” to buy a product they didn’t want. Yet everyone agrees that Congress has the authority to compel everyone to participate in a national health insurance program like Medicare, which is very clearly a more liberal approach to solving the problem than the current approach, which relies heavily on the private market. The funny thing is, if the individual mandate falls, a single-payer national health insurance system may well become inevitable. It will just be a painful road we have to travel to get there, littered with incredibly sick, incredibly bankrupt individuals.