I’m not a lawyer, and I don’t play one on TV (to paraphrase a commercial from several years ago). But it occurs to me that through legal maneuvering, President Barack Obama and his inner circle may have the last laugh on the health care bill, all for the benefit of the American people and pleasure of political progressives.
On Monday, December 13, federal district judge Henry Hudson, a George W. Bush appointee, ruled in favor of Virginia Attorney-General Ken Cuccinelli’s contention that the individual mandate to buy health insurance, as outlined in the Patient Protection and Affordable Health Care Act of 2010, was unconstitutional. His reasoning was that it “exceeds the boundaries of congressional power.”
Judge Hudson ruled that the mandate was an unconstitutional expansion of the Commerce Clause of the Constitution. The commerce clause in Article I, Section 8, Clause 3 of the Constitution states that the United States Congress shall have power “to regulate commerce with foreign nations, and among the several Sates, and with Indian Tribes.”
During the presidential campaign of 2008, candidate Barack Obama stated several times that if the country was creating a health care system from scratch, the best system would be a single payer system. The more politically sanitized term for this approach is “Medicare for all.” In any event, it is similar to what exists in Canada and every industrialized country in the world save for the United States.
Why did only one candidate (Ohio Congressman Dennis Kucinich) embrace Medicare for all as the most desirable approach, even with America’s history of a patchwork of coverage and non-coverage involving the private and public sectors in a fashion that looked like a Rube Goldberg invention?
One need look no further than a mile from the Capitol; K Street, NW where the lobbyists for the health insurance companies “do business.” What a bonanza the current health care bill is for them. Name one other industry that has ever had a government policy deliver thirty to forty million new customers to their door step as the health care mandate does.
There have been times when I feel as if Barack Obama has fooled me, much to my disappointment. Now I’m hoping that he’s fooled me again. You see he was a professor of constitutional law at the University of Chicago. One might say with confidence that he knows quite a bit more about the constitution than, say, Delaware GOP Senatorial candidate Christine O’Donnell who was a self-proclaimed constitutional scholar because she once took a seven day workshop from something called the Claremont Institute. Somehow I think that Barack Obama learned a little bit more about the constitution from three years at Harvard Law School, studying for the Illinois bar, and becoming a professor at the University of Chicago Law School.
So the commerce clause is clearly not news to him. Now, back to Ken Cuccinelli, Virginia’s Attorney-General. He argued against the mandate because he saw it as the weakest link in the bill. His reasoning was essentially this: While the commerce clause gives the federal government the right to regulate commerce between different states, it does not give the federal government the power to mandate an individual to engage in interstate commerce. The federal government could not tell Americans that at least once in their lives they need to take vacations in a state other than their own. Similarly, it cannot tell anyone that they must purchase a product such as health insurance, even though almost every component of health care is delivered to us through interstate commerce. Just think of pharmaceuticals; is any medicine entirely manufactured and distributed within a single state?
So perhaps, President Obama had a pretty good feeling that the 2010 act had at least one clause of dubious constitutionality. At the same time he supported it to give the illusion, if not the reality, of bi-partisan support.
What most everyone agrees upon is that there are many components in the 2010 act that Americans either liked prior to the bill’s passage or will come to like as they live with it. These include banning insurance companies from refusing to pay for children’s illnesses that are the result of a pre-existing condition. This component will go into effect for adults in 2014. The bill also allows children to stay on their parents’ policy through age twenty-six. It removes lifetime caps on what insurance companies can pay to cover an individual’s medical needs.
Back to the legal side. President Obama wasn’t born yesterday, and he can do a pretty good job of reading the John Roberts Supreme Court. Eventually, at least one of the challenges to the mandate is going to make its way to the Supremes. If they uphold the mandate provision, then we’re no worse off than we are now, which is much better than we were prior to passage of the act. If the Court rules the mandate to be unconstitutional, that will not take away the favorable opinions that most Americans have about many other components of the act. So what option is left to preserve those components if the mandate is found to be unconstitutional? We received a hint when Cuccinelli was recently interviewed on POTUS (Politics of the United States) XM-Sirius radio. Cuccinelli was asked a simple question. If the program was funded by raising the payroll tax (Social Security and Medicare), would it be constitutional? Cuccinelli didn’t hesitate. He immediately said ‘yes.’ If that is what would happen, you could call it by another name. That name would be “Medicare for All.”
So perhaps President Obama is crazy like a fox and could see that several years down the road we might just have a “Medicare-for-All”-type system. That would be brilliant.
Of course, nothing comes easy. Funding health care through an addition to the payroll tax would be difficult to pass through Congress, especially the one that is going to have a Republican majority in the House for at least the next two years. Even with a Democratic majority, “no-brainer” issues like extending unemployment insurance or providing benefits to nine-eleven first responders do not come easily. But unlike unemployment benefits or aid to first-responders, health care reform brings benefits to all Americans. With a little more cleverness and some help from his friends, he may just pull of a remarkable act of political adroitness. Let’s hope so.
NOTE: Robert Reich wrote a similar piece on January 6, 2011.