The Justice Will See You Now

By Klein, Ezra | Newsweek, February 14, 2011 | Go to article overview

The Justice Will See You Now

Klein, Ezra, Newsweek

Byline: Ezra Klein

The fate of Obama's health-care law may rest with one man.

As of now, Supreme Court Justice Anthony Kennedy is the most pivotal health-care policy thinker in America. Following district court Judge Roger Vinson's Jan. 31 ruling that declared President Obama's health-care-reform law unconstitutional, the plan has a solid 2-2 record in the federal courts: two district judges have ruled for it, and two against. The odds are very good that it will eventually wind up in the Supreme Court. And once it gets there, odds are the bill's fate will come down to one person: Justice Kennedy.

None of that is certain, of course. Perhaps the issue will be resolved at the circuit-court level. Perhaps Chief Justice John Roberts will side with the administration and Kennedy won't be the swing vote. Or perhaps an asteroid will hit the earth, rendering tweaks to the U.S. health-care system moot.

But probably not. Health-care reform is likely to come down to Kennedy--in particular, his views on the so-called individual mandate, which requires all those who can afford it to purchase health insurance. And here's the irony of the whole thing: the individual mandate was a policy that Democrats adopted precisely in order to attract moderate Republicans like, well, Anthony Kennedy. If it gets rejected, what's likely to come next is going to be a whole lot less congenial to conservatives.

"Health care is unlike other commodities," Walter Dellinger, who served as solicitor general to Bill Clinton, told the Senate Judiciary Committee last week. "There is nothing else in our economy where an individual who has made no preparation can go in and get $1 million of goods and services passed on to them at taxpayer expense." That means it struggles with free riders: people who would have society pay for their care, rather than pay for it themselves.

One solution is single-payer health care, in which everyone pays taxes and everyone gets government-provided health-care insurance. But conservatives aren't big fans of replacing private industries with government monopolies. So in 1991, a group of conservative academics proposed an alternative: the individual mandate, which says that everyone who can afford health-care insurance has to buy it. That means no free riders, no healthy people waiting until they get sick to buy insurance or stick the rest of us with the costs of their care. "We did it because we were concerned about the specter of single-payer insurance, which isn't market-oriented, and we didn't think was a good idea," says Wharton economist Mark Pauly, one of the idea's authors.

For the next 18 years or so, that's the role the individual mandate played. It was what Republicans proposed as a smaller-government alternative to the health-care plans favored by liberals. In November 1993, Sen. John Chafee, a Republican from Rhode Island, proposed the Health Equity and Access Reform Today Act. The legislation became the GOP's semiofficial response to President Bill Clinton's health-care bill, and it was eventually co-sponsored by such influential Republicans as Bob Dole, Richard Lugar, Chuck Grassley, and Orrin Hatch. The other major Republican alternative, the Consumer Choice Health Security Act, included Jesse Helms and Trent Lott as cosponsors, and also included an individual mandate.

Neither bill went anywhere, but they cemented the individual mandate as a central feature of Republican health-care thinking. In Massachusetts, Mitt Romney's 2005 health-care plan used an individual mandate. In the Senate, Utah Republican Bob Bennett joined with Oregon Democrat Ron Wyden to offer the Healthy Americans Act, which included an individual mandate and attracted more bipartisan support than any other universal-coverage bill in history. …

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