Steven Pearlstein
Steven Pearlstein

Steven Pearlstein: Eat your broccoli, Justice Scalia

If the law is an ass, as Mr. Bumble declares in “Oliver Twist,” then constitutional law must surely be the entire wagon train.

Like most Washington policy wonks, I spent too much of last week reading transcripts of the Supreme Court arguments over the constitutionality of the new health reform law. This was to be a “teaching moment” for the country, an opportunity to see the best and the brightest engage in a reasoned debate on the limits of federal power. Instead, what we got too often was political posturing, Jesuitical hair-splitting and absurd hypotheticals.





<caption> Three days of arguments on the health care overhaul wrapped up at the Supreme Court. Pointed questions show justices wrestling with where to draw the line on federal powers over the individual and the states. Decision expected in June. </caption>


My first thought on perusing the briefs filed in the combined cases was to notice what wasn’t there: any involvement on the part of Corporate America.

For the past 20 years, big business has complained endlessly about escalating health-care premiums, which they correctly blamed on “cost-shifting,” including paying indirectly for the free care provided to the workers at firms that did not provide health benefits. They wanted an end to fee-for-service medicine that rewarded doctors for providing more care than necessary. Some even talked of reforms that would begin to move the country away from an employer-based insurance system.


Small businesses have spent the past two decades complaining that the reason they don’t offer coverage is that it’s too expensive because they don’t get the large-group and community rating advantage. So how did the National Federation of Independent Businesses respond to a law that assured small businesses the benefits of large-group purchasing and community rating and threw in billions of dollars in subsidies to boot? It signed up as one of the named plaintiffs challenging the constitutionality of the new law.

It’s hard to know what the business community will demand if the Supreme Court overturns the health-care law. At that point, however, it will hardly matter, since they will have lost all political credibility on the issue, particularly with the Obama White House and anyone who happens to be a Democrat.

That said, I don’t agree with the conventional wisdom that, in light of last week’s oral arguments, it’s a sure thing that the court will overturn the law or its individual mandate.

Judging from their blatantly partisan bleating from the bench, it is certain that Justices Antonin Scalia and Samuel Alito will join Clarence Thomas in doing whatever it takes to impose their conservative, free-market, nothing’s-changed-since-1788 agenda on the country.

An essential element of the Republican strategy these days is that, whenever confronted with an obvious failure of the free market, the correct response is always to try to turn the tables and blame it on misguided government policy. So it was this week when the solicitor general and several justices tried to make the obvious point that one reason so many Americans lack health insurance is that the market is inherently unlike any other in that we don’t deny medical care to sick people who can’t pay for it. It is from this anomaly that springs the “individual mandate,” a requirement that all citizens buy health insurance, to prevent them from becoming free-riders on a system paid for by others.

Rather than wrestling with this obvious anomaly, however, Scalia and Alito simply gave it the old Republican razzmatazz, blaming the government for creating the problem in the first place by obligating hospitals to treat the sick even if they are uninsured and cannot pay for the care. It was the kind of sophomoric logic you’d expect from high school debaters — or a Republican presidential candidate at a tea party rally — not from members of the highest court in the richest country on Earth.

Michael Carvin, the lawyer representing the NFIB, was clever enough to see that this was not going to be a winning constitutional argument. The proper constitutional solution to that dilemma, he explained, was not to shut the emergency room door on the uninsured, but simply require them to buy insurance when they show up seeking emergency care.

Ah, I get it! An insurance market in which nobody has to sign up for coverage until they’re ready to make a claim. Why didn’t Aetna and Kaiser think of that? And if it works for health insurance, why not extend it to fire, auto and flood insurance as well? Scalia and Alito, of course, wasted no time in taking up this brilliant idea.

Another of Scalia and Alito’s cute debating tricks was to latch on to an opposing argument and take it to its illogical extreme in order to show how silly it is. By this technique, the individual mandate suddenly became the first step on the proverbial slippery slope to government requiring that all Americans buy broccoli or a gym membership because those, too, will make us all healthier and thereby lower health-care costs.

It is axiomatic, of course, that the power to regulate, or to tax, or to criminalize is the power to regulate, tax or criminalize stupidly. The power to require you to buy airbags for your car is also the power to require you to buy leather seats and a surround-sound stereo. The power to levy a fee for buying a handgun is the power to levy a fee for not buying a handgun. The power to criminalize abortions is the power to criminalize condoms and birth-control pills.

But for some reason, when it comes to requiring Americans either to buy health insurance or pay a fee, we are now supposed to believe that “all bets are off,” according to Chief Justice John Roberts, or that “a fundamental shift” has occurred in the relationship between the individual and government, according to Justice Anthony Kennedy.


For starters, the Constitution already limits the “abuse” of such power by subjecting those who wield it to regular elections in which citizens are free to decide what is going too far and what is not.

And as justices know all too well, there are already in the case law scores of judicial tests that have been successfully applied to a wide range of congressional actions and powers to assure that they are reasonable and rational, that they are not arbitrary, that they are necessary to achieve a legitimate or compelling state interest. Surely Justices Roberts and Kennedy and their legion of summa cum laude law clerks can conjure up a workable criteria to distinguish a law requiring the purchase of health insurance from a law requiring the purchase of pomegranate juice.

If there is a legitimate challenge to the law, my hunch is that it is likely to come over the question of whether the individual mandate is as narrowly drawn as possible to achieve its objective. If regulating the interstate market for health care requires regulating health insurance, and if assuring a healthy insurance market requires solving the problem of free-riders who drive up premiums and taxes for everyone else, then isn’t the solution to require everyone to buy “catastrophic” insurance?

Roberts asked that question twice, but got no satisfactory answer, either from the solicitor general or any of the other justices. The reason is that there is no good answer. The safer ground for health reform was always to base it, at least initially, on policies that cover major medical events such as a heart attack, a premature birth, or treatment of cancer or a serious chronic condition. Yet such an approach has always been rejected out of hand by liberal Democrats and powerful “disease lobbies” who were intent on finally achieving health-care coverage that was both universal and comprehensive. Now their over-reaching has not only driven up the cost of health reform and made it difficult to win broad political support, but has also put the entire law in constitutional jeopardy.

In the end, Roberts will see the institutional peril in overturning the most significant piece of domestic legislation in a generation, particularly in the wake of the overtly partisan decisions of Bush v. Gore and the Citizens United. With Kennedy in tow, the chief is likely to articulate a modest new limit on Congress’s power to regulate interstate commerce that would allow health reform to proceed in some fashion. Or, as he hinted in oral arguments, he may duck the commerce clause altogether and simply uphold the individual mandate as a legitimate exercise of Congress’s taxing power. The cacophony of accompanying dissents and concurring opinions will make it difficult to figure out who won, who lost and exactly what precedent was set.

The law, in other words, remains an ass.

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