Nothing New at the Core of the Health Care Debate

If an apple a day keeps the doctor away, how many apples would it take to fix the health care system?

Last week, our nation’s Supreme Court heard oral arguments about the health care reform bill.

After cutting through all of the underbrush, the dispute hinges upon how the nine Justices will interpret one very short passage in our federal constitution.

The case is called Florida v. Department of Health and Human Services. A decision by our Court is expected later this year.

Health care is a curious business. In many ways, it operates similar to the annual pledge drives for public television: you can still watch Sesame Street even if you don’t ever send in a donation.

Likewise, our health care system allows the uninsured to rack up very large medical bills simply by getting sick or being injured in an accident. Congress estimates that this results in about a billion dollars of unpaid medical bills each week.

These unpaid bills are then “shifted” elsewhere in the system…ultimately to those who are already paying for health care. This cost-shifting increases premiums for an average family by an estimated $1,000 per year.

(These unpaid bills also create other, hidden expenses for the uninsured: bankruptcies, foreclosures, divorce, and the health-related problems related to these stressful events.)

Fifty million Americans are uninsured. Many millions of these are young adults who are playing the odds: gambling that their youthful vigor will keep them out of the hospital. Millions more want insurance but can’t afford it. Others can afford insurance but have been denied coverage due to a pre-existing medical condition.

This is a complicated set of problems that the free market has had trouble fixing. In response, Congress attempted a far-reaching solution in 2010.

As would be expected from an 891-page law, the Patient Protection and Affordable Care Act has many features.

It eliminates pre-existing conditions. It expands Medicare coverage for older Americans and Medicaid coverage for poorer Americans. It encourages employers to provide health plans to their employees (or, more accurately, it penalizes those who don’t). It creates a system where individuals can join together to purchase group insurance. And, most famously, it includes a mandate that requires every American to have health insurance, or else pay an annual penalty.

This last feature has raised most of the ruckus. Even before the health care bill was passed, legal pundits argued that forcing Americans to purchase something was unconstitutional.
By now, it is mostly forgotten that another source of criticism of the bill was from state governments who believed that the health care bill will impose great costs upon their already-limited Medicaid budgets.

The State of Florida was the first to challenge the constitutionality of the new law. The case was filed two years ago in federal court in Pensacola, Florida. Twenty-five other states have joined. It has slowly made its way through the appeals process, and last week the Supreme Court heard oral arguments.

The key question in the case is whether Congress has the ability to pass a law that requires all Americans to pay a penalty if they do not purchase health insurance. The district court and the intermediate Court of Appeals both decided that Congress does not have this power.

* * *

Article I of our federal constitution reads like a check-list of powers that we give Congress: borrowing money; raising armies; declaring war; establishing post offices; building roads; and regulating interstate commerce.

Following this list of “enumerated powers” is a rather vague phrase that also allows Congress to “make all Laws which shall be necessary and proper” for executing those powers.

Courts have interpreted this phrase (called the “Necessary and Proper Clause”) along with the Commerce Clause to justify a very broad scope of congressional power, for nearly any law that somehow impacts the stream of interstate commerce.

For example, these clauses have allowed Congress to limit wheat production; prevent the movement of diseased cattle across state lines; prohibit racial discrimination in hotels; and outlaw home-grown, medicinal marijuana.

In recent years, our Court has attempted to rein in this seemingly unlimited power, such as in 1995 by invalidating a gun control law because the link to “commerce” was too weak.

The question here is whether Congress can regulate those who are not participating in interstate commerce, i.e., those who are not purchasing insurance.

I predict that a majority will uphold the law using reasoning such as this: Congress can regulate insurance; an individual’s economic decision to forego insurance affects the rest of the market; the potential effect on commerce is unique and tremendous (health care accounts for one out of every six dollars spent in America); and the $1500 annual penalty for not having health insurance is a plausible attempt to eliminate the incentive for health care free-loaders.

In the past, our Court has allowed Congress to experiment with solutions to national problems, and if it passes a bad law, the remedy is at the ballot box, not in a courtroom.

About the author

I'm a South Dakota trial lawyer, raised on a hog farm near Lennox. My cases tend to involve corporate wrongdoing (such as insurance companies that lie or deny claims, or both). science (such as whether someone had the mental capacity to execute a Will or Trust), or technical aspects (like construction litigation). I also regularly sue public entities that refuse to pay their fair share. I studied international relations as an undergrad at Georgetown University in Washington, D.C., and then graduated second in my law school class at the University of South Dakota. I'm an avid runner and a "family-taught" carpenter (i.e., I learned most of what I know from Grandpa, Dad, and my brother Steve). And I'm a kid at heart, with a love for model trains and my children's Legos. Beyond the practice of law, my most passionate endeavor is The Finish Line Fund. We founded this non-profit in 2017 in order to raise funds and expand research for rare diseases, including Friedreich’s Ataxia, which affects my 17-year-old daughter. You can learn more (and give) at