Obamacare, the Supreme Court, and the Darkness of Hearts

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 Argument

The March 27 question revolved around two questions:

  1. Is the health insurance market so unique that failing to buy insurance is, in itself, an act of participation in the market?
  2. 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.

The Debate

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.

About Ben Bartlett

Ben Bartlett lives in Louisville, Ky., with his wife and two terrific kids. His degree is in Political Theory and Constitutional Democracy from Michigan State University, and he has a bunch of education from a bunch of other places with nothing official to show for it. He has taught high school speech and debate, worked for a congressman in Washington DC, and worked in the health and energy industries. He is interested in how pop culture, history, politics, and theology interact with the inner and community lives of individuals... which is weird because he now works as a business analyst. Few things make him happier than reading, discussing, and recommending books.

  • Daniel

    I have to add some color to this statement:

    “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.”

    Right now, under current law (non-”Obamacare” law) hospitals must provide life-saving care to all comers, regardless if they own insurance or have enought money to pay. (This was passed in 1986, signed by Ronald Reagan, often referred to as EMTALA.) Under the current system, these costs are passed on to others, usually paying users of medical services and/or their insurance companies. It enshrines an essentially “free rider” program as law.

    The insurance mandate is the exact opposite of this, by requiring those with the ability to pay to participate in the risk pool. Yet because this involves the Federal (not State) government forcing people to pay for insurance that they may not use (though it is extremely rare for a person to never use health care), it may be deemed an unconstitutional expansion of Federal power.

    Ironically, as Medicare has seemingly passed the Constitutional test for several decades, an expansion of this system would probably be Constitutional. Thus, a truly “Socialized” system would be deemed more Constitutional than the Republican-inspired insurance mandate of “Obamacare” which partners with private companies.

  • Adam E

    As an Australian, I find the United States’ obsession with freedom slightly amusing (I’ve heard the small government arguments all the way over here). It appears as though ironically, much of your population are enslaved by the pursual of freedom…

  • http://www.thechristianwatershed.com Joel

    The problem with our healthcare system is that it’s extremely expensive. The problem with the debate around healthcare is that no one can figure out how to keep our system working as it (with top quality people), but make it affordable to everyone. I really think the quote by Chesterton about how Progressives want to make new mistakes while Conservatives want to keep those mistakes from being corrected applies perfectly to the healthcare debate.

    It does make sense to me for the government to provide a basic healthcare coverage for citizens who have no insurance. They can go to the doctor and get medication when they have a sinus infection, they can get treated for cancer, and so on. And to ensure that businesses keep offering healthcare benefits, offer some type of business incentive for companies that offer healthcare. And yes, this would probably require a some type of tax somewhere (or for us to cut our military budget and reapply it to healthcare; but blowing up foreign cultures is kind of our thing).

    In this system, the sick and poor are taken care of, people still have an incentive to work hard and get better insurance, and the system keeps making money.

  • Daniel

    Joel, a very large part of that expense Is due to the cost of EMTALA. One report (that only looked at California) estimated that the cost was approximately $1,186 per family per year. An estimated 55% of all Emrgency room visits are unpaid. That is a huge burden, and the insurance mandate would have drastically cut tha cost by spreading the risk to a larger pool.

  • http://www.benbartlett.blogspot.com Ben Bartlett

    Hey guys,

    Thanks for the excellent and helpful comments.

    The irony in this case really is amazing. Obama walked this very fine line (which may now be overturned) because he and his team felt it was the only way they could get their law passed… and yet now they are in danger of losing it over a constitutional question, when the thing they REALLY wanted (universal healthcare) would be on far safer ground constitutionally… they could just never make it happen politically.

    Further, it is fascinating because even as conservatives are arguing about “freedom” as if that is the core issue here (it isn’t), the thing that may stop the law is the limiting factor of enumerated constituational powers… the fact that the federal government can’t go beyond powers given in the constitution. But their STATE governments can make that choice anytime! There’s nothing about the health care reform law that can’t enacted on a state by state basis. Too many conservatives think the law is outside the bounds of what government can do, when in reality it is only outside the bounds of what the FEDERAL government can do… maybe.

    The problem of cost in healthcare is severe. There are several major areas in which we can’t seem to muster up the political will to address cost drivers- increasing the size and health of the risk pool, tort reform, and better incentive structures to encourage healthy living (preventable health problems are probably the largest cost driver in the entire market) are all things that would be huge leaps forward. It’s embarrassing how hard it is to even explain the healthcare market (which really is structured far differently than, say, the market for broccoli or burial insurance) to politicians, much less get them to enact wise policies.

    As I say, the more you know the more you fear it won’t be solved. But it also provides some fascinating opportunities within the chaos of the problem to be a witness to a truer hope.

  • Daniel

    Well said, Ben. And I agree healthy living would make tremendous strides in increasing our overall health and decreasing the cost of healthcare associated with preventable diseases. Paying for some portion of healthcare through “sin” taxes on unhealthy things (tobacco, alcohol, even fatty foods.) But for some bizzare reason, our unhealthy choices that require medical intervention (and usually costs to be covered by others in our insurance pool) are viewed as a God-given right, and no “Gubmint man” can make me pay for my “free choice.”

  • Faith

    I’m sorry to say this, but I have so many issues with this article.

    1-This isn’t about “entitlement”. While I’m not sure that I would call healthcare a right, I do absolutely believe that it is morally wrong for our healthcare system to favor the rich and penalize the poor. If someone is sick, they should be able to receive the care they need at the appropriate time, regardless of who they are. Our current system is one of triage based on currency, when we should prioritize care based on need. Even if my needs were taken care of, I would still gladly vote for universal healthcare because I believe that no one in a country this rich should have to go without it.

    2-If I’m a poor single mom without insurance whose baby has whooping cough or an ear infection, having to take that child to the emergency room for “free” care will ultimately be harder on me, my child, and the system (likely costing more to taxpayers) than simply being able to take the baby to a primary physican. And I may wait until I’m absolutely desperate to have my child cared for because of the stigma attached to my poverty and “freeloading”, causing further damage to his/her health. This isn’t really a system where I’m winning.

    3-Furthermore, “planning ahead and budgeting carefully” is not enough. My husband and I are a great example of this. His employer, FedEx, was forced because of the law to offer health insurance to their package handlers, and we opted in to it. So now we have health insurance. Through careful saving, we also have an emergency fund that is roughly two months’ worth of income for both of us. However, the annual 2000$ deductible on that insurance would use up over 2/3s of that fund. After that, the next 8,000$ would be split 50/50 between us and the insurer.
    Since the average cost of having a child in a hospital is 10,000$, me becoming pregnant would wipe us out financially. We aren’t much better off than we were before, because we will still be paying general small costs like doctor’s visits out of pocket and unable to afford any medical emergencies. It’s very easy to assume that wise financial decisions are the solution if you have a decent amount of disposable income. For us and so many others, it’s not that simple.

    4-Finally, lumping teachers’ unions into this debate is unfair and shows a lack of knowledge about their issues. My dad has worked in one school system for twenty years, and has not gotten even a cost of living raise for nearly a decade. The teachers have had to choose between getting a raise and keeping their benefits, and they’ve chosen to keep their benefits (because, as seen above, dealing with poor insurance is costly). However, last year when their contracts were renegotiated, they were forced to settle for decreased benefits on top of not having a raise. These are people working 50-60hr workweeks in one of the most vital fields in our country, and yet here in Ohio they almost lost their right to unionize and have a voice in decisions made about their jobs.

  • http://www.benbartlett.blogspot.com Ben Bartlett

    Faith,

    I try pretty hard to be sure the things I say are careful and nuanced… at least I mean to. Please feel free to point out specific things I say that don’t seem that way to you.

    The issues you raise are good perspectives, but I don’t think they are self-evidently right.

    1-It’s perfectly fine to desire universal healthcare. In fact, I personally am in favor of it if it can be done well. However, referring to healthcare as a “right” that everyone is “entitled” to does reflect a certain sense of entitlement… that’s just how the definition works. And it is not self evident that healthcare, especially health insurance, is a basic human right… most people in human history didn’t have guarenteed healthcare or insurance. Most importantly, my article is trying to highlight the fact that whether universal healthcare is good or not, our desire for it is not necessarily always rooted in righteous motivations.

    2-The argument you make here is a good one for why it is important to provide coverage for the uninsured. I agree with you! Nothing about my article is in disagreement so far as I can tell.

    3-You are right that for many, planning and budgeting are not enough… healthcare is incredibly expensive. However, it is well known that a large portion of the uninsured actually do make enough money to get decent health insurance or supplemental insurance, but choose not to because they prefer to have the money. So my point there was that some people expect healthcare (i.e. the government should foot the bill when they get sick) without budgeting and planning carefully (so that they can pay for insurance or pay back medical debts). I personally know people whose insurance was so minimal they ended up footing the bill when their kids came along. Now, personally I think it was unwise of them not to have purchased supplemental insurance in preparation, but the point is that ultimately they took care of their bills because that was the choice they made. There are many, though, who have the ability to prepare for health costs, but choose not to and want the government to cover that for them.

    4- I actually understand teachers union issues quite well. That was a very minor point, and its purpose was to highlight that sometimes people use catch phrases to justify actions or strategies that they take. I’m sure your dad is a great teacher and a good man, and I am not making a blanket accusation about his or teachers’ motivations generally. However, it is certainly the case that many teachers unions have used the “good of the children” as a way of justifying actions taken to protect their members which, it can be proven, are not helpful to children at all.

    I actually have much more sympathy with your perspectives than you might think. But if we are fair with ourselves, I think we’ll admit that in our hurry to demonize our enemies and justify our own choices, we often ignore the fact that often our own motivations are tied just as closely to sinful desires as they are to a desire for the good. Honesty about that fact seems, to me, like a wiser starting place than attempting to tell ourselves that we are the only true champions of righteousness against the evil, self-serving nature of our political enemies.


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