Liberty and Healthcare for All

For weeks, legal commentators debated whether the Supreme Court would conclude that Congress had exceeded its authority to regulate interstate commerce or if it would instead uphold the Affordable Care Act. It turns out both sides were right.

June 29, 2012

For weeks, legal commentators have debated whether the Supreme Court would conclude that Congress had exceeded its authority to regulate interstate commerce or if it would instead uphold the Affordable Care Act. It turns out both sides were right.

The Court’s conservative wing was, in fact, persuaded that forcing Americans to buy health insurance is no more constitutional than forcing them to buy broccoli. But, in a modern version of the “switch in time that saved nine,” Chief Justice John Roberts found a way to uphold the law anyway, deciding that Congress may use its authority to implement “a tax hike on certain taxpayers who do not have health insurance.”

In some ways, this is a satisfying solution. Our Constitution exhorts Americans to band together in order to “promote the general welfare.” Congress fulfills this vital goal by using its power to tax and spend. The Social Security Act of the New Deal, for example, requires Americans to pool resources so that all of us are cared for in our golden years. Similarly, the Affordable Care Act asks all to contribute, as needed, so that fewer American families suffer the tragedy of going without vital medical care (or bankruptcy) due to a lack of health insurance.

Opponents, including Justices Scalia, Kennedy, Thomas and Alito (who co-authored a rare four-voice dissent), complain that the law is an attack on individual liberty because it forces people to participate in the healthcare market. But this view wrongly assumes that Americans have no interest in our nation’s healthcare system until the moment we get sick. This is the so called liberty of a nation of free riders who demand that America has the best medical system possible, but who shift the costs to their neighbors until the moment they need it. Conversely it is the liberty to ignore the millions of Americans who live without adequate access to basic healthcare. 

American democracy is rightly praised as the world’s model for protecting individual liberty. But our founding fathers sought to protect that liberty by ensuring that each of us belongs to a stronger, safer, healthier and more just nation – a “more perfect union” in the words of the Preamble. We cannot “promote the general welfare” by asserting our liberties at the expense of our neighbors.

Moreover, it is worth remembering that the Affordable Care Act, despite the harsh rhetoric leveled at it, is actually a fairly moderate incremental reform. Critics paint “Obamacare” as socialist, or worse. But it is a far cry from a “single payer” plan, akin to Canada’s nationalized healthcare system, where the government would provide all Americans with health insurance – although such a plan would plainly be constitutional under today’s ruling. This more ambitious scheme would apparently pass muster with the dissenters as well; they do not object to Congress’s authority to tax and spend on healthcare, only that the mandate creates a penalty and not a tax. 

The Affordable Care Act instead incorporated a long-standing Republican proposal designed to expand private insurance coverage through market incentives. The law requires insurers to cover patients with existing medical conditions. In exchange, all Americans who can afford insurance must either purchase health coverage or pay a tax as an alternative, in order to prevent consumers from buying insurance at the last possible moment. These trade-offs are based on rational economic principles and reasonable ideas about shared responsibility – little different from a state requirement that all drivers carry liability insurance.

There are certainly legitimate debates to be had about the Affordable Care Act. But there is no credence to the claim that the Constitution gives any American the liberty to reap our nation’s benefits while refusing to help solve our nation’s problems or contribute to the well-being of our neighbors.