Obamacare Survives

I don’t have much to add to the reams of commentary about the Supreme Court’s upholding of the ACA.

Sometimes the Supreme Court really screws things up. Sometimes it muddles things. But sometimes, like today, it winds up clarifying things.

The healthcare “mandate” really should have been clarified as a tax from the very beginning. But that would have been politically untenable, so Obama went out of his way to pretend it wasn’t a tax. The result is that everyone focused on the first part — “you must buy health insurance!” — without focusing on the second part — “or else…”

Most people seemed to be acting like the “for else” was, you go to jail. If you don’t buy health insurance we put you in jail! Or, if you don’t eat buy broccoli we put you in jail! Because in this country we like to put people in jail. The United States has a culture of fear. We’re a pretty violent place compared to the rest of the first world; we focus on punishment a lot. And punishment usually means jail.

The Supreme Court — with the Chief Justice as the instrumental vote — showed the mandate for what it really is: a tax. You don’t have to buy health insurance. You can pay the tax instead.

This reframes the issue as a choice. Until now — due to poor political framing — most people seemed to think that under this law, if you didn’t buy health insurance, you’d be doing something illegal — you’d be a criminal. But that was never true. In reality, if you don’t buy health insurance, you have to pay a tax. (Of course, if you refuse to pay a tax, you’ll be treated like anyone else who refuses to pay taxes. But hey, I’m not allowed to withhold the part of my tax that goes toward funding wars or the part of my tax that funds the House Bipartisan Legal Advisory Group’s defense of DOMA. You don’t get to pick and choose which taxes you pay.)

In an ideal world, reframing the issue as a choice — pay for health insurance, or pay a tax — should reduce the temperature a bit. I don’t know if that will really happen, but I hope that at least some people who were uncomfortable with the mandate  – most likely, some people in the middle of the political spectrum — are now more comfortable with it. Because it was never really a mandate. It was a coercive tool.

The point of coercing most people into getting health insurance was not to make people do things just because Democrats like to make people do things. The point was to widen the insurance risk pool. This was necessary in order to offset the new law’s provision that prohibits insurance companies from refusing to sell health insurance to sick people or people with preexisting conditions. Without the mandate, the insurance rolls would become overwhelmed with sick people, raising premiums for those with health insurance. The risk pools need the influx of premiums from a bunch of healthy people in order to balance out the sick people. That’s how insurance pools work.

I used to be bothered by the analogy to auto insurance, because it didn’t seem accurate. People would say, “Health insurance is just like auto insurance! Everyone has to have auto insurance, so what’s the big deal with making everyone buy health insurance?” The difference, I would reply, was that they’re not the same, because you do not have to buy auto insurance unless you have a car. (New York City much?) Nobody is forced into the auto market, but the law would be forcing everyone into the health insurance market. This did bother me a bit.

But of course, as many people have pointed out, everyone is already a part of the health insurance market. Everyone gets sick, with the very rare exception of the few hardy souls who’ve never needed to see a doctor a day in their lives. Getting sick is part of the human condition. Having a car is not.

That’s why it’s troubling that a majority of the Court held that the mandate failed under the Commerce Clause. The activity/inactivity distinction was always pretty stupid, but Roberts and Kennedy fell for it. I have not actually read the opinion yet, so I’m not sure how far into the weeds they get with the Commerce Clause — SCOTUSblog’s Tom Goldstein seemed to say that this is an unusual situation that will not create much Commerce Clause precedent. I plan to read it when I get a chance.

Okay — a bunch of paragraphs later, I guess I did have stuff to add.

At any rate, I’m relieved the Court upheld the ACA.