Commentary & Opinion
12:00 pm
Tue April 3, 2012

Stephen Gottlieb: Supreme Court Plays Guardian Counsel in the Health Care Argument

Let’s understand what that argument about the health insurance mandate was about. Everybody agreed that a single payer system would have been constitutionally OK. It would have been based on the taxing power. However toxic taxes are to the public, legally they are not particularly toxic. Everyone admits the taxing power is broad.

A single payer system would have been based on a tax. With a tax, taxpayers would have no choice. The tax is required. We taxpayers pay. End of story. That’s the way the government provides Medicare and Medicaid. And both are clearly constitutional. In fact, the states complaining the loudest about the health insurance mandate, complained to the Supreme Court that Congress threatened to exclude  those states from Medicaid if they refused to abide by the new provisions. Medicaid has always been tax based. Taxes weren’t the problem.

But lots of people have been telling us that conservatives like choice. So Congress didn’t pass a tax. Congress didn’t create a system in which we the taxpayers have no choice. Instead it said, here is what this program is going to cost. Now you choose how or to whom to pay that cost. That should have been conservative heaven.

But no. It turns out that the problem with the Affordable Care Act was that it gave people a choice. Worse, it gave conservatives a choice. It said here is the market you adore. So you don’t have to pay the government – although you have that option. You can buy health insurance in the market, the sacred market. And the conservatives pounced – on Obama.

What this reveals to me is that the battle has nothing at all to do with health care, constitutional powers, or the market. It’s all about Republicans vs. Democrats. If the Democrats do it, Republicans will pounce. Romney proposed a conservative, market based approach to health care in Massachusetts. As soon as Obama endorsed it as President, the Massachusetts health insurance system became toxic to Republicans.

I thought conservatives had principles. But pure partisanship is not a principle. It is war, ugly, hellish war with collateral damage to ordinary members of the public. Given that the stakes are health care, there will be loss of life and limb.

I don’t know what the Court will do but I suspect they will not decide on principle. The questions they asked have little to do with constitutional law. The conservatives on the Court kept peppering the Government’s lawyer with questions about what else the government could require. The Constitution does not outlaw everything that the people would vote against. It does not outlaw every bad idea – and God knows our politicians have had plenty of those.

Our Constitution created a democratic system. It left it up to us, the people, in the voting booth, to decide what’s good or bad. That is the constitutional issue – whether the Court is going to allow the people to make that decision or the Court is going to take that over as if it were the Ayatollah of Iran and his so-called Guardian Council, composed of religious clerics, that squelch every attempt at reform and veto every attempt of the Iranian people to establish a democratic system of government.

May the Lord save our Democracy. But don’t count on our Court to give it a moment’s thought.

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.

The views expressed by commentators are solely those of the authors, and do not reflect the views of this station or its management.

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