The future of health care reform just became a little more secure, thanks to a federal judge in Detroit.
On Thursday, U.S. District Judge George Caram Steeh issued a ruling in Thomas More Law Center v. Barack Obama. It's one of a dozen lawsuits the opponents of health care reform have filed in federal courts, in an effort to roll back the Affordable Care Act. But it is the first case in which a judge has issued a verdict. And the verdict is pretty much a wholesale win for reform.
The plaintiffs in this case are the Law Center, a conservative public interest law firm based in Ann Arbor, Michigan, along with some Michigan residents. The focus of their lawsuit is the individual mandate--the requirement, which becomes effective in 2014, that all Americans obtain a "creditable" health insurance policy. ("Creditable" is wonkspeak for a policy that includes basic benefits, as defined by the government.) According to the plaintiffs, the federal government has no right to impose that requirement, since it would compel people to spend money on health insurance instead of some other good.
In response, the Obama Administration has argued the authority to impose the mandate lies in two separate constitutional provisions--one that gives the federal government power to regulate interstate commerce and one that gives the federal government power to tax for the sake of promoting the general welfare. Steeh basically agreed with both propositions.
From the ruling itself (courtesy Andrew Sullivan):
The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses — through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties.
This phenomenon of cost-shifting is what makes the health care market unique. Far from “inactivity,” by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants.
Back to Jonathan Cohn:
But the premise of Steeh's legal argument seems to be a notion about policy--that it's not possible to regulate the insurance industry, in a way that would make coverage available to all people, without compelling every person to get coverage. On that count, I would argue, Steeh is correct.
So what does this mean for the repeal movement? My limited understanding, informed by a few casual conversations with some law professors, is that Steeh's decision is consistent with the traditional understanding of the Commerce Clause--that the only way to throw out the mandate would be to reexamine conventional assumptions about the Commerce Clause. That would be a fairly radical move.
And finally, Ezra Klein:
There's no "right" argument here. No one doubts that health-care reform would be constitutional if Antonin Scalia decided to pursue his passion for beekeeping and allowed President Obama to appoint his replacement. The only reason there's any question about the law's constitutionality is that conservatives appointed five of the nine sitting justices, and conservatives have organized against the constitutionality of a proposal they once considered not just constitutional, but desirable as a matter of public policy.
And so it goes. Politics is politics, and the Supreme Court is, at this point, deeply and unquestionably political. I continue to think it unlikely that they will want the sort of direct confrontation with the political system, and with the Democratic Party, that overturning health-care reform would entail. But only time will tell.
