The Supreme Court has a lot on its Plate

The Constitutionality of the Health Care law is before the Supreme Court today.

Today is a day –like few others –where law and belief will merge to define who we are as a people –as Americans.

The extension of health care to roughly 32 million people – our fellow countrymen and women –raises the question of how we define ourselves as human beings – what existence means to us, what life requires of us or grants us, what our inalienable rights are and are not, and what the U.S. Constitution grants the federal government power to regulate or require of us.

The question to be answered by the Supreme Court is not, however, ultimately and exclusively one of right and wrong, morality or justice. It is instead: whether the U.S. Constitution gives the right to regulate the health care of individuals to the federal government or whether this right is given by the Constitution to individual states.

Philosophically, the issue as addressed by Congress and the President when they passed the health care law was: Is our individual autonomy and personal liberty – the ability to be free from an obligation to other Americans – stronger and more important under the Constitution –even sacrosanct – than the federal government’s ability under the Constitution to make laws for our general welfare. Underpinning the interpretation of the Constitution’s requirements, by the nine Supreme Court Justices, five Republican nominated and four Democratic, are the sometimes conflicting principles of responsibility and freedom. When does one have a responsibility to others, when only to oneself ?

Let’s first acknowledge the courts limited role in answering this question. Courts don’t make laws directly, only indirectly, by interpreting what the legislative and executive branches, and the federal or state constitutions mean. Yet, matters of interpretation are seldom absolutely clear. One’s subjective experience, personal, philosophical and political orientation often contributes to one’s interpretation, as very few difficult cases can be decided solely by logical analysis alone. Where one starts the analysis, or weights a case’s significant factors, is infused with one’s own personal experience. Further, what latitude or judicial restraint the Supreme Court must exercise, given that a democratically elected Congress passed the health care law with solid majorities and a democratically elected President of the United States signed the bill into law, is something the Court must consider.

Broadly defined, the questions are: Is the health care law’s requirement to force individuals to purchase insurance or fine them if they don’t an allowable exercise of federal authority? Does the Constitution give the federal government the same right as state governments to make laws for the general welfare of the people? As it is often put metaphorically, can the Federal government make you buy broccoli because broccoli is good for you, or do only states have the right to make you buy broccoli just because it’s good for you?

The ultimate legal question is: Does the law’s mandate that we all have to purchase health care – with taxpayer subsidy if we cannot afford the price –fall under an enumerated clause in the U.S Constitution –since the Constitution –unlike individual states’ rights –does not have a general welfare provision to allow the Federal government to improve people’s general welfare whenever and however the Federal government wants to define “general welfare”? Secondly, does the Constitution’s commerce clause regulating interstate commerce or general taxation provisions provide a basis for the federal government to regulate health care?

Democrats generally reason this way: because all of us experience health as an issue, and because health care and how each of us pay or don’t pay for our own health care affects each other and 17 percent of the national economy, our own individual health care necessarily affects interstate commerce and is governed by the Constitution’s commerce clause or taxation provisions.

Requiring one to buy insurance as a young healthy person, for instance, makes the pool of insurance payers larger, making insurance affordable for someone with diabetes or heart disease. The requirement of forcing one to obtain health insurance for the good of expanding the pool of insurance payers, is just like the obligation to pay taxes, where part of the money will fund a service you may never use, like the “Head Start” early childhood program for instance. Not buying broccoli doesn’t affect others, not having health insurance and having other people pay for your health care when you become sick does affect others nationwide. Further, people not buying health insurance, unlike broccoli, makes the cost of health care unaffordable and thus unavailable to others. Expanding the pool of insured to include those not too sick or sick at all is the only way to keep the premiums down and affordable to others– absent government set price controls or government-run nationalized health care.

It should also be remembered that if the government-run insurance option, that was initially proposed by the Democrats stayed in the bill that eventually passed, people could have chosen to insure themselves by choosing a Medicare like government option – making the individual mandate to purchase private insurance not as necessary. But the Republicans uniformly did not want a government option. Years ago, Republicans wanted an individual mandate to make people buy private insurance instead of government insurance, that was before President Obama and the Democrats wanted it. Then they didn’t want it anymore. Instead, they wanted to defeat President Obama and Democrats generally.

Further, the government is not making you eat broccoli or have any particularly medical procedure done, it is only making you buy it. When we American’s stop viewing the value of our money as being very similar to the value of ourselves as human beings – we will determine sharing more of our wealth and money for the good of others and our society does not diminish us, it enhances us. Making one pay for health insurance is not the same as making one accept a medical treatment –it is only money –it is not your or my own dignity that the government is forcing you to sacrifice.

Being required to purchase health insurance, with a subsidy if one’s income is insufficient, so that insurance can be more affordable for all of us, is like paying taxes generally for things we don’t agree with, which we all must do. It’s a sacrifice –but a necessary sacrifice to live in a large, organized society that addresses many disparate needs.

Oh yeah, today’s Supreme Court decision might also decide who is the next President for our country.

Today is quite a day.

This is Randy Feldman on WCRN’s Midday Report.