Friday, July 8, 2011

A Conservative Judge Finally Gets Health Reform Right

Judge Jeffrey Sutton's finding on the health insurance mandate in the U.S. Court of Appeals (Sixth Circuit) gives hope that the right wing is not totally bonkers.

Before readers flame me for questioning Tea Party theology, here's what David Brooks, the conservative New York Times columnist, wrote about Republicans on Tuesday with regard to the debt ceiling "debate":
...the Republican Party may no longer be a normal party. Over the past few years, it has been infected by a faction that is more of a psychological protest than a practical, governing alternative.

The members of this movement do not accept the logic of compromise, no matter how sweet the terms. If you ask them to raise taxes by an inch in order to cut government by a foot, they will say no. If you ask them to raise taxes by an inch to cut government by a yard, they will still say no.

The members of this movement do not accept the legitimacy of scholars and intellectual authorities. A thousand impartial experts may tell them that a default on the debt would have calamitous effects, far worse than raising tax revenues a bit. But the members of this movement refuse to believe it...
Judge Sutton's conservative credentials are impeccable! He clerked for Justice Scalia in 1991-1992. He was nominated to the court by George W. Bush and confirmed after a contentious debate by a 52-41 Senate vote. His well-reasoned, well-written decision has set conservative ideologues on their heels.

Judge Sutton's reasoning won't surprise anyone who understands the health system. He concludes that health insurance is a national enterprise, appropriately subjected to the Commerce Clause. He further concludes that to expand access while maintaining a market-based approach to insurance, the mandate is required - otherwise we'd all wait until we needed care and only then start paying our premiums. .

Here's how Judge Sutton structures the analysis:
the [mandate] provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce. In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance...our task is to determine whether self-insuring for the cost of health care services is an economic activity, and whether Congress had a rational basis to conclude that, in the aggregate, this activity substantially affects interstate commerce.
He concludes, obviously correctly, that Congress did indeed have a rational basis, consistent with the Constitution and established law, for its conclusion.

And with regard to Tea Party fury at being penalized for the "inaction" of not buying insurance, the Judge, in effect, agrees with David Brooks that the outrage is a psychological symptom, not a rational argument:
...the constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable label. The vast majority of individuals are active in the market for health care delivery because of two unique characteristics of this market: (1) virtually everyone requires health care services at some unpredictable point; and (2) individuals receive health care services regardless of ability to pay.

...Call this mandate what you will—an affront to individual autonomy or an imperative of national health care—it meets the requirement of regulating activities that substantially affect interstate commerce...No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.
It's very important that Judge Sutton clearly empathizes with the libertarian component of American values. He's writing as a good conservative, not a liberal egghead, and he doesn't like the mandate. But he makes clear that not liking it, even being offended by it, doesn't make it Constitutional invalid:
That brings me to the lingering intuition—shared by most Americans, I suspect—that Congress should not be able to compel citizens to buy products they do not want. If Congress can require Americans to buy medical insurance today, what of tomorrow? Could it compel individuals to buy health care itself in the form of an annual check-up or for that matter a health-club membership?... And if Congress can do this in the healthcare field, what of other fields of commerce and other products?

These are good questions, but there are some answers. In most respects, a mandate to purchase health insurance does not parallel these other settings or markets. Regulating how citizens pay for what they already receive (health care), never quite know when they will need, and in the case of severe illnesses or emergencies generally generally will not be able to afford, has few (if any) parallels in modern life. Not every intrusive law is an unconstitutionally intrusive law. And even the most powerful intuition about the meaning of the Constitution must be matched with a textual and enforceable theory of constitutional limits, and the activity/inactivity dichotomy does not work with respect to health insurance in many settings, if any of them. (emphasis added)
Judge Sutton's opinion supports David Brooks's distinction between rational, admirable conservatism and irrational, often pathological, Tea Party ideology. He places his faith in facts and time, not ideological passion. Hats off to the judge for bringing sanity and thoughtfulness into the health reform debate:
Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.

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