Now that the five most conservative justices on the U.S. Supreme Court have signaled they are considering striking down part or all of the health reform law, the question falls to the law's opponents: How do you propose fixing America's broken health care system? The Patient Protection and Affordable Care Act is the approach embraced by President Barack Obama and congressional Democrats to provide all Americans with medical security. The law builds on the existing market for private health insurance, an approach promoted by conservative think tanks and Republicans until it was embraced by Democrats. If the Supreme Court finds the law unconstitutional, it will be up to Republicans to propose a workable alternative.
During this week's hearings, the court's conservative justices were particularly dismissive of solicitor general Donald Verrilli's argument that requiring everyone to have health coverage or pay a penalty is well within Congress' Commerce Clause authority. The justices focused on a facile, slippery slope argument, asking Verrilli why the individual mandate isn't like forcing people to buy broccoli. Of course, unlike broccoli, health insurance exists for unpredictable circumstances such as a serious accident or disease that could afflict anyone at any time and could outstrip almost anyone's ability to pay. And no grocer is under a legal obligation to give away broccoli for free. But without health insurance, there is a free-rider problem where the uninsured get care they can't pay for, shifting substantial costs to others — and significantly impacting interstate commerce.
Florida Attorney General Pam Bondi and the 25 other state attorneys general who so fiercely opposed the law should lay out their plan for solving the cost-shifting problem. Maybe Bondi wants to adopt the approach suggested by Justice Antonin Scalia of releasing hospitals from their legal obligation to care for everyone who shows up at the emergency room. Let's see how well that goes over with Floridians.
If the court's conservatives do strike down the individual mandate, they will be turning their backs on well-established legal precedent. If they go further and set aside the entire 2,700-page law, they will be the activist jurists that conservatives like to rail against. During arguments Wednesday over whether the individual mandate was severable from the remainder of the act, liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor reminded their colleagues that the obligation of the court is to excise as little of the law as possible and leave it to Congress to decide what to do with the elements that remain.
The court should uphold the entire Affordable Care Act. If it finds the individual mandate unconstitutional, it should leave in place the rest of the law. And if it throws out the entire law, the most obvious solution to the nation's health care issues would be to adopt a clean, single-payer system. Medicare already covers almost everyone 65 years old and older, and the same concept could be extended to health care for every American. And as both sides of the health care argument agreed this week, there would be no question that approach would be constitutional.