The nine justices of the US Supreme Court probably cast their votes Friday on whether the Patient Protection and Affordable Care Act is constitutional.
And while no one can predict how the Supreme Court will vote based on oral arguments—everybody who writes about this subject has to say that—I simply can’t see how proponents will get a majority to sustain this law.
There were too many hostile questions directed at government counsel by the two conservative justices—Anthony Kennedy and Chief Justice John Roberts—who might be considered swing votes. And Solicitor General Donald B. Verrilli Jr. didn’t answer the key question: What limits did Congress have on its authority to regulate interstate commerce?
So, it’s likely that the individual mandate to buy health insurance will go down and it will probably take the whole law with it. We’ll know for sure in June, when the Court announces its decision. And who knows? The justices may surprise us.
But for political and policy reasons, the Obama Administration needs a Plan B. If this law is struck down, what do we do?
Because no matter how you look at it, our health care system is a mess. Americans pay nearly twice as much for health care as citizens in other countries do, and have shorter life expectancies.
That’s because people who can pay out of pocket or have good insurance get the best doctors and technology in the world; for the 50 million Americans who don’t have insurance at all–well, don’t ask.
It’s a jerrybuilt system that evolved from employers offering health care coverage as a perk during World War II, when they couldn’t boost wages.
Over time, corporations wearied of paying for blue-chip plans as costs rose, so they outsourced care to notoriously customer-unfriendly health maintenance organizations (HMOs). Many smaller companies didn’t offer benefits at all. And more and more people fell between the cracks.
Other industrialized countries instituted national health care plans in the 1980s and 1990s, with single payer the dominant model, financed out of taxes. It’s not ideal, for sure, but most people in those countries appear satisfied.
President Bill Clinton tried to address the problem in his first term, with his wife Hillary front and center. But it was a disaster –overbearing and terribly handled when a compromise with Republicans was there for the taking. (23 GOP senators including Minority Leader Bob Dole co-sponsored a bill whose centerpiece was an individual mandate!)
In 2009, congressional Republicans were a far more radical, obstructionist party—even before the Tea Party election. So, there was likely no deal to be done with them. But the president still had to get 60 votes in the Senate. That meant larding up the bill with all kinds of junk, which Chief Justice Roberts and others pointed out during oral arguments. And he let Congress take the lead again, as he had with the stimulus bill.
Result: a 2,700-page monstrosity with an uncertain effect on the economy when unemployment was at its highest in decades and we faced crippling debt. It was a huge expansion of the welfare state at a time we must think about shrinking government, not growing it. In short, we just can’t afford it.
“The lesson for next time in health reform is faster, smaller,” progressive Princeton professor Paul Starr wrote in 1994. “We made the error of trying to do too much at once, took too long, and ended up achieving nothing.”
History may not repeat itself, but it sure rhymes.