First, if you haven’t read Kate Pickert’s excellent coverage of Tuesday’s supreme court arguments about the Affordable Care Act, you should. Right now. Reading Kate, I find the performance of the Solicitor General Donald Verrilli Jr. appalling. After all the energy expended over 60 years in bringing universal health insurance to fruition, the man couldn’t summon the confidence and passion to make the very obvious case for the bill’s constitutionality. He couldn’t answer the simple question, posed by Justice Kennedy: If the government can force you to buy health insurance, what else can it force you to buy?
The answer is simple. It lies in the broccoli analogy, raised by Justice Scalia, echoing the bill’s opponents’ arguments in lower courts. Can the government force you to buy broccoli? It certainly is good for you. The answer to that is obviously, no. The good for you argument has nothing to do with health care. The relevant argument is: if you don’t buy health insurance, it’s bad for me. If you don’t buy health insurance and have an accident, I have to pay for your treatment at the emergency room. My insurance premiums are higher as a result.
That makes the health care system, as currently construed, unique among markets–uniquely unfair and inefficient, and quasi-public to boot. That is the reason why every state requires people who own cars to carry auto insurance. And yes, you can opt out of car ownership, but you can’t opt out of having a body that will require servicing from time to time. That is the limitation that Justice Kennedy was seeking. I suspect this argument will be made more forcefully by Justices Breyer et al when the Supremes get down to arguing this among themselves. It would have been nice if the Obama Administration’s lead litigator had made a coherent case on Tuesday, though.