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Obamacare faces the Supremes

Posted: April 5, 2012 10:53 a.m.
Updated: April 6, 2012 5:00 a.m.

Obamacare faced a tough crowd at the Supreme Court. But those tough, probing questions from Justice Anthony Kennedy, the court's key swing voter, give defenders of the Affordable Care Act reasons to have hope.

It is always unwise to read too much into the questions the justices ask during arguments. But at this point, it seems likely that Obamacare's fate will hinge on its least popular feature, according to polls: the individual mandate that requires the uninsured to buy health insurance of face a fine.

The issue pressed by Kennedy's questions, in particular, was whether there is a "limiting principle" that will prevent the government from forcing us to buy other things that might be good for us -- like, say, health club memberships or healthy vegetables like broccoli.

But as Kennedy's tough questions persisted, Kennedy sounded increasingly like he was searching less for ammunition than for reassurance. Was he looking for holes in the administration's argument in order to knock it down or help him prepare arguments in its defense?

It's hard to believe Kennedy didn't know the answers to his questions before he asked the. But if he found good enough reasons to support the law, he could possibly win the support of Chief Justice John Roberts, whose court would sound more credible with a 6-3 decision than a 5-4.

Justice Kennedy asked Solicitor General Donald Verrilli if he saw any limits on the interstate commerce clause of the Constitution, a clause that provides the main argument for the government to regulate health care. To be persuaded, Kennedy undoubtedly needed to hear a "yes" answer.

And he got it, although Verrilli unfortunately stumbled in ways that brought generally poor reviews from media analysts. That was unfortunate because, as unpopular as the mandate may be, the constitutional arguments in its favor are strong.

For one, there's no question that health care falls under interstate commerce. If you have an accident while visiting another state, for example, your health insurance coverage follows you.

And the slippery slope "broccoli" argument, echoed by several conservative justices, echoed the talk-show rhetoric of the tea party extremists protesting outside the Supremes' courthouse. But it is easily refuted. First of all, health care is not broccoli, as the Obama administration argued. We don't all eat broccoli but virtually all of us use the health care system.

Yet when the healthcare market provides free hospital emergency room visits, among other examples, we all wind up having to pay for it in higher insurance and health care costs.

Besides, those who talk about Obamacare intruding into the health care market need to remember how much government already is in health care, especially with the very popular programs of Medicare and Medicaid. As Justice Ruth Bader Ginsburg pointed out, Congress requires us to pay for Medicare or Social Security, even if we think we won't need it.

Ironically, even the court's conservatives indicated no hint of a constitutional objection to a single-payer plan, in which the government provided insurance as it does with Medicare. However, as anyone who remembers the prolonged debate knows, congressional Republicans would not even go along with a tax, let alone a mandate -- even though the mandate idea originated with the conservative Heritage Foundation in the late 1980s. Some leading Republicans who supported it then now oppose it, now that Obama has proposed it.

There's an irony: The same democratic process that produced Obamacare provides the best "limiting principle" now. We may see that demonstrated once again, if the high court sends Obamacare back to Congress. If so, history might repeat itself.

But who knows? By the time the high court decides, I expect support for Obamacare to have grown, once the public can get past the mandate and focus on its more popular features.

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