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Analysis: Supreme Court meets theater of the absurd

This article first appeared in the St. Louis Beacon, March 30, 2012 - At times, the six hours of oral arguments in the U.S. Supreme Court on the national health care law seemed like theater of the absurd.

During a very difficult day on Tuesday defending the individual mandate, Solicitor General Donald Verrilli almost seemed to muse aloud about the absurdity of his situation. He called it an irony that the opponents of the law said it was such a novel use of government power and an abuse of power.

"I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare/Medicaid type model. And so, it seems a little ironic to suggest that that counts against it."

There is no question but that Congress could enact a single-payer plan favored by liberals. Nor is there any question but that Congress could have passed the individual mandate if it has called it a tax instead of a penalty.

All the justices also agreed that Congress could mandate that everyone buy health care at the "point of service." In other words, Congress could require people to buy health insurance when they walked into the emergency room with a broken bone.

Justice Ruth Bader Ginsburg pointed out the absurdity of the suggestion. That's not the way insurance works, she said. As some commentators put it, waiting until the point of sale was like telling insurance companies they have to insure a house after it starts burning.

Justice Anthony M. Kennedy's first question on the mandate raised the worry that the law for the first time required the creation of commerce, rather than the regulation of commerce. His fellow conservatives chimed with a bushel of law school hypotheticals: If the government could force people to buy health insurance, why couldn't it force them to buy broccoli, cell phones, burial insurance, club memberships.

Justice Stephen Breyer, a liberal, tried to answer the question.  He noted that McCulloch vs. Maryland had upheld the creation of new commerce — the Bank of the United States — which, in turn, engaged in more new commerce.

The justices continually pressed Verrilli to lay out a limit that could justify the mandate but not government edicts on broccoli or cell phones. Verrilli pretty much failed.

The best he could do was to stress the uniqueness of the situation where uninsured people received care in emergency rooms and then the cost of their care is shifted to people with insurance — a cost of about $1,000 a family a year.

But Justice Antonin Scalia argued that the government could solve the problem by not guaranteeing the care in the emergency room, an argument quickly branded by internet commentators as the "let 'em die" option.

The exchange went like this:

Verrilli: It's because you're going — in the health-care market, you're going into the market without the ability to pay for what you get, getting the health-care service anyway as a result of the social norms that allow — that — to which we've obligated ourselves so that people get health care. Scalia: Well, don't obligate yourself to that. Why — you know? Verrilli: Well, I can't imagine that that — that the commerce clause would — would forbid Congress from taking into account this deeply embedded social norm. Scalia: You — you could do it.

The challenge to the Medicaid expansion argued on the final day also contained an element of absurdity, which the liberals stressed.  How could it be, Justice Elena Kagan asked, that giving the states a "boatload" of money could coerce them into joining the Medicaid expansion?

Paul Clement, the lawyer representing 26 states challenging the law, said his biggest concern was the law's provision that permitted the federal government to cut off all Medicaid money — old and new — to a state that would not join the expansion.

Breyer pointed out that the potential of a cutoff was not in the new law but had been in the Medicaid statute since it was passed in 1965. Yet no one has questioned until now that multiple Medicaid expansions have been constitutional.

Clement said that a line had to be drawn somewhere and this expansion is the place to draw it. The liberal justices responded that it sounded as though Clement was arguing that Medicaid had been unconstitutional for some time.

The crowning absurdity was that it wasn't until the last five minutes of the three days of arguments that Verrilli made an emotional plea about the importance of covering the uninsured so that they could enjoy the blessings of liberty. Up until then, an observer unfamiliar with the ways of the court would have had hardly a clue that the welfare of 40 million Americans without health insurance hung in the balance.

William H. Freivogel is a professor in the Southern Illinois University's School of Journalism, a contributor to St. Louis Public Radio and publisher of the Gateway Journalism Review.