In the future, we will look at March 27, 2012 as a pivotal moment in our country’s healthcare debate. The Supreme Court listened to arguments on the individual mandate and to be frank, Obama is going to want this one back. Most experts felt confirmation of the mandate was all but certain. Now, though, it hangs more precariously than ever before.
But the debate is interesting for more than discussion of a legal precedent. It forces us to face questions about who we are as citizens, as moral actors, and as children of God.
The March 27 question revolved around two questions:
- Is the health insurance market so unique that failing to buy insurance is, in itself, an act of participation in the market?
- If it is — and this would allow the federal government to “force action” using its regulatory powers over commerce — what limitations will prevent the government from being allowed to force action in other markets, like food or burial insurance?
Unfortunately for those who support the law, Solicitor General Verrilli pretty much botched it. He was prepared, and he had clearly spent a lot of time laying out definitions. But where he failed was in his tremendous lack of imagination: he simply couldn’t make good use of comparisons or metaphors to describe what his complicated definition would look like in real terms, or how it would differ from an instance of Congress overstepping its commerce regulation authority.
Consider this exchange (quotes taken from official Supreme Court transcripts):
JUSTICE ALITO: All right. Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else. Isn’t that a very artificial way of talking about what somebody is doing? And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?
VERRILLI: It’s — I think it’s completely different. The — and the reason is that the burial example is not — the difference is here you are regulating the method by which you are paying for something else — health care — and the insurance requirement I think — I mean, the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community-rating reforms, to end — to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale, and –
JUSTICE ALITO: I don’t see the difference.
Or look at how he responds to this question:
JUSTICE ALITO: Before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce, if what? If this is part of a larger regulatory scheme?
GENERAL VERRILLI: We got two and they are — they are different. Let me state them. First, with respect to the comprehensive scheme. When Congress is regulating — is enacting a comprehensive scheme that it has the authority to enact that the Necessary and Proper Clause gives it the authority to include regulation, including a regulation of this kind, if it is necessary to counteract risks attributable to the scheme itself that people engage in economic activity that would undercut the scheme. It’s like — it’s very much like Wickard in that respect. Very much like Raich in that respect.
With respect to the — with respect to the — considering the Commerce Clause alone and not embedded in the comprehensive scheme, our position is that Congress can regulate the method of payment by imposing an insurance requirement in advance of the time in which the — the service is consumed when the class to which that requirement applies either is or virtually most certain to be in that market when the timing of one’s entry into that market and what you will need when you enter that market is uncertain and when — when you will get the care in that market, whether you can afford to pay for it or not and shift costs to other market participants.
The whole hour went like this. By comparison, listen to this quote from Paul Clement, the lawyer for the 26 states fighting the healthcare overhaul (emphasis mine):
JUSTICE SOTOMAYOR: We get tax credits for having solar-powered homes. We get tax credits for using fuel-efficient cars. Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us?
MR. CLEMENT: Well, I think it would depend a little bit on how it was formulated, but my concern would be — the constitutional concern would be that it would just be a disguised impermissible direct tax… I don’t want to suggest we get to the taxing power to soon, but I do think it’s worth realizing that the taxing power is limited in the ability to impose direct taxes.
And the one thing I think the Framers would have clearly identified as a direct tax is a tax on not having something. I mean, the framing generation was divided over whether a tax on carriages was a direct tax or not. Hamilton thought that was a indirect tax; Madison thought it was a direct tax. I have little doubt that both of them would have agreed that a tax on not having a carriage would have clearly been a direct tax. I also think they would have thought it clearly wasn’t a valid regulation of the market in carriages.
The justices were looking for clear, simple guidelines to answer whether people can be forced to participate in the health insurance market, and Verrilli simply didn’t have the creativity to give it to them. Clement did, and that may very well win the day for conservatives.
While lawyers and judges dueled inside, parsing nuanced definitions of weakly-defined Constitutional law, the area outside the court was a madhouse.
Huge crowds filled the streets. In one area, Michele Bachmann blasted the administration for its healthcare policies, but was largely drowned out by people screaming in support of those policies. In another, a woman with cancer insisted that the new healthcare law was the reason she is alive. Protesters marched and danced within inches of each other, hurling angry comments back and forth.
The healthcare debate has taken on epic proportions, and it is often described as being a debate between rights and freedom. Do we have a right to good healthcare? Should we have the freedom to not pay for health insurance?
I wonder. It is no great secret that politics is often the art of wanting something for selfish reasons, but finding a more palatable reason to explain to people why you want it. Politicians want power so they can “give back to the country that has given them so much.” Teachers unions want higher pay and benefits because “children are our most precious resource.” Governors want gigantic contracts for military suppliers in their state because “our boys overseas should have the tools they need to complete their mission.”
The health debate has the same problem. Sure, for some the challenges of caring for sick family members and paying ridiculous hospital bills is very real. But for many, the desire for universal healthcare is tied to a sense of entitlement: the government should take care of me without my having to plan ahead or budget carefully. And for others, the desire for “freedom” is grounded in a powerful unwillingness to share what they have with groups they don’t know or may not like, despite the fact that they themselves have benefited from similar policies. Those are broad brushstrokes and of course, they don’t apply to everyone, but it’s fair to say that for every self-righteous tagline the two sides use, there is an underlying exaltation of the self that would not seem so righteous were it exposed to the light of day.
The Problem of the Heart
We shouldn’t be surprised. James says it best:
What causes fights and quarrels among you? Don’t they come from your desires that battle within you? You desire but do not have, so you kill. You covet but you cannot get what you want, so you quarrel and fight. You do not have because you do not ask God. When you ask, you do not receive, because you ask with the wrong motives, that you may spend what you get on your pleasures.
Much of who we are and what we believe flows from a complicated interaction between our upbringing and our sinful desires. We self-righteously think we are clear-headed and objective, but often we are just the obvious products of a particular set of circumstances. We fight because we have raised all sorts of idols in our lives, idols that affirm and reassure us of our choices, and those idols must be defended at all costs. Does the government and society owe you something? Defend your rights and demand your due! Is the government a robber, stealing what you have worked hard to gain? Defend your freedom and fight anyone who suggests you have a responsibility to the community!
Our hearts are desperately selfish, and we are kidding ourselves if we think the rancor surrounding the healthcare debate originates from anywhere else.
And yet I am hopeful. As our world grows larger and more complex, and as individuals feel the need to fight ever more fiercely to protect themselves, there is opportunity. A society that once prided itself on the virtue and self-sacrifice of its citizenry is losing notions of love for the Other, and the individual is becoming isolated and embittered as a result. The darkness in human hearts is made clearer all the time, and it is in the darkness that the light of Christ shines brightest.
I don’t know what will happen in the healthcare realm, but I do know that my church sometimes has to use precious funds to help the sick and feed the poor. I don’t know whether your freedoms will be protected or not, but I do know some people need me to ask how they are doing, because they are too proud to tell me their struggles on their own. I don’t know who our next President will be, but I know who the One King always has been and always will be, and my prayer is that Christians everywhere will use the tumult of the times to proclaim the Kingdom of God to a world that desperately needs it.