Convoluted approach to health care

Twisted logic brought us to the stage where we must haggle over details of the Affordable Care Act of 2010.

Legal challenges present arguments against mandatory health insurance which confirm that we should have universal health care. It likewise explains why government should be administering health-care insurance, or at least be the central focus of it.

Opponents dubbed the health-care law unconstitutional because the law dictates that most Americans obtain insurance. Though I am a firm supporter of health care coverage, I wonder if they are right. The clause they are targeting may well be unconstitutional.

This means that to do what is right we must violate the Constitution. Vulnerable people are so powerless that their advocates must resort to an illegal option.

Judge Roger Vinson of Federal District Court in Pensacola, Fla., said during a hearing on Dec. 16 that the law’s mandate for most Americans to obtain health-care insurance would mean “a giant expansion” of the Commerce Clause of the Constitution.

The New York Times quoted Vinson stating, “People have always exercised the freedom to choose whether to buy or not to buy a commercial product.”

The law is being challenged by 20 governors and attorneys general, including my incoming governor and attorney general, Tom Corbett of Pennsylvania; all but one are Republicans.

The parsing, the fine points, the decoding, the decorous proclamations and the interpretations are only beginning to surface. Just reading the emerging arguments is a maddening and annoying experience. Reciting them to Guantanamo prisoners might have succeeded where waterboarding failed.

The Times account explained that the Supreme Court has ruled in the past that Congress can employ its Commerce Clause authority to justify the regulation of “activities that substantially affect interstate commerce.”

Ian H. Gershengorn, a deputy assistant attorney general, told Vinson that the health care market is unique because getting ill is unpredictable and potentially bankrupting. This means that the financial results of lacking insurance, including cost-shifting to others, justify congressional regulation.

Attorneys for the state officials asserted that the new law would for the first time mandate that Americans purchase a commercial product, making it unconstitutional.

Lawyer David B. Rivkin Jr., representing the plaintiffs, proclaimed that the new law “would leave more constitutional devastation in its wake than any statute in our history.”

If Rivkin has a credible argument, why spoil it with prophecies of doom?
Prior to Vinson’s hearing, a federal judge in Virginia - Henry E. Hudson - had already ruled the mandate unconstitutional, prompting Brooklyn Law Professor Jason Mazzone to explain in a Dec. 17 Times op-ed why Hudson may be on sturdy legal ground.

“Judge Hudson explained that whatever else Congress might be able to do, it cannot force people to engage in a commercial activity, in this case buying an insurance policy,” Mazzone wrote.

“The conservative (Supreme Court) justices in particular will no doubt wonder what else Congress can make Americans do if it can make us buy health insurance.”

Mazzone’s commentary triggered a half-dozen responses in the letters section which underscore the need for a government-run system.

“We can all agree on this: 50 million uninsured Americans are going to need medical care at some point,” writes Sandra Schneider, president of the American College of Emergency Physicians. “And we will be required to provide it, whether they pay us or not.”

Writes Harvard Law Professor Joseph W. Singer: “The Constitution does not require us to respect the right not to buy insurance only to force the rest of us either to pay for medical care for others or to deny it when it is needed.”

Andrew Koppelman, a professor of law and political science at the Northwestern University School of Law, adds: “If Congress can’t require people to buy insurance before they get sick, the problem of pre-existing conditions can’t be solved at all. A government in which huge national problems can’t be solved is precisely what the framers were trying to avoid when they replaced the Articles of Confederation with the Constitution.”

Schneider, Singer, Koppelman and the other letter-writers present arguments that only reinforce the steps Congress should have undertaken 60 years ago: Establish a health-care insurance program operated by the government, with more advanced benefits that private insurance companies can provide.

Health care is very much in the public interest. Any disease detected early would prevent epidemics. Preventive care will offset future health problems and free up emergency rooms for real emergencies. Whatever the flaws of government, even senior managers make considerably less money than insurance company executives and their owners.

A government-run health-insurance system will be owned by America’s citizens. Eventually, a public system will probably be far less costly.

Other countries such as Great Britain and Canada may have problems with their systems, but the United States can learn from them and try to avoid said problems.

Our government hardly “insures domestic Tranquility” or “promotes the general Welfare” when it ignores the health needs of up to 50 million of America’s 308 million citizens.

Those phrases are carried in the Preamble of the Constitution, which describes the general intentions of the document. It reads in full: “WE THE PEOPLE OF THE UNITED STATES, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Much can be made of other phrases in the Preamble to augment arguments for a government-run system.

What our leaders are trying to do with the new law is bizarre and probably unworkable. They are employing a roundabout method to make the system work.

If health care is a critical public interest, how do they expect to make the law work through private enterprise? A government-run system would be supported by reliable revenue sources and transfer of funds from other programs that are cut.

The new law sets up the expectation that money for health insurance will be acquired through the private sector. If everyone must buy health insurance, then this process will need to be monitored and policed. That would not be necessary if government operates the program.

In addition, there will be still be Americans who will not be covered by health insurance, anyway.

That we must contend with these complications is silly. Of course, we are stuck with this system because of politics. Most Republicans and some Democrats watered down this legislation.

The public option - a partial government-run operation - might have passed the Senate if not for the Senate’s filibuster rule which allows 41 senators to block legislation.

However, the mandate may not even be necessary. Former Vermont Gov. Howard Dean said on MSNBC that this provision may make little difference. Young people in their early twenties can still be covered by their parents’ insurance, and those over 25 often reach a stage in which they are making more money and raising families whom they will want covered by insurance.

Also, private insurers can establish a reward-and-punishment system for citizens who do not sign up when they are young and healthy, according to Dean.

If Congress had enacted a more stable system, we would not be having this conversation.