Posted in Our Blog on March 28, 2012
The Supreme Court is currently hearing debate among lawyers who have descended upon the Court to argue the Constitutionality of President Obama’s 2010 Health Care Law.
Reading the coverage of these debates, I’ve been surprised by how muddled the conversation about what’s going on with this law has become; everybody has a different understanding. Such is typically the case in these cluttered media and information times – a subject like health care reform is so complicated and arduous that most of our eyes glaze over after reading two sentences about it.
Bill Barrow of The Times-Picayune puts it well when he explains that,
[Former U.S. Solicitor General Paul] Clement, representing Louisiana and 25 other states that sued to strike down the law, will argue that the minimum coverage requirement – commonly called “the individual mandate” – abuses congressional authority under the Constitution’s Commerce Clause, which challengers say extends to Congress the right to regulate the circumstances of active transactions but not the right to compel participation.”
Charles Pierce of Esquire says about the law that, “The [Obama] administration has sold it so badly that 72 percent of the American people believe the whole thing to be unconstitutional, and 25 percent of the country in one poll thinks the law already has been repealed.” That’s the dissonance that occurs when we discuss this particular law – it’s been so unpopular and doubted for so long that most assume it’s not even a law. But it is a law, and there’s intense debate going on right now over its future.
The key debate is a question over one provision of the law: Whether the law is Constitutional or not because it requires each American to purchase a health care plan (This has come to be known as the ‘Individual Mandate’.). The Commerce Clause of our Constitution opens up the fundamental question: Can you, the government, create commerce?
The news today was not good for the future of the law. Jeffrey Toobin of CNN said, “This was a train wreck for the Obama administration. This law looks like it’s going to be struck down.” There are currently far too many questions regarding the Individual Mandate (they are outlined well in this post on the web site of The Atlantic), and Justice Anthony Kennedy – considered the “Swing Vote” in this case – came out strongly against the Individual Mandate today.
There is something for every side to viciously fight over here. Supporters and detractors have both marched in Washington in front of the Supreme Court to voice their opinion. The only consensus anybody seems to be able to reach is that something must be done about the health insurance industry in the United States, but nobody agrees what that thing must be.
Pierce puts it well when he says:
No matter what they might argue to the contrary, the people supporting the law are also supporting the government-sponsored delivery of 30 million new customers into the arms of one of the most disliked industries in America. No matter what they might argue to the contrary, the other side was supporting the notion that government can do nothing whatsoever to ameliorate the circumstances of people who simply will sicken and die because they can’t afford not to sicken and die.
That is ultimately the point and the problem. We must do something, but nothing can be done without going through a bureaucratic process that only pushes everybody farther apart. The best thing we can do about that, I think, is to find a way to cut through the noise and the politics and educate ourselves as to what’s really going on.
You can listen to today’s Supreme Court proceedings HERE.