Matt Miller - The Archives
My Supreme Court health-care brief
The Washington Post, November 16, 2011

May it please the court: Yes, there are fancy legal arguments about the individual mandate for health care, but let's stipulate the obvious: The Constitution is what five of you say it is. On today's court, this really means what one of you says it is. With that in mind, Justice Anthony Kennedy, here are five thoughts I hope you'll consider.

First, America's 50 million uninsured haven't gotten any airtime in the presidential campaign thus far, because we've been listening only to Republicans. Yet the number of uninsured are now equal to the combined populations of Oklahoma, Connecticut, Iowa, Mississippi, Kansas, Kentucky, Arkansas, Utah, Oregon, Nevada, New Mexico, West Virginia, Nebraska, Idaho, Maine, New Hampshire, Hawaii, Rhode Island, Montana, Delaware, North Dakota, South Dakota, Alaska, Vermont and Wyoming.

Can a debate moderator please read that list slowly at the next GOP debate? And then ask the candidates: Suppose the uninsured were all segregated into these 25 states? Would America—even Republican America—really punt on the problem for decades, as we've done? That the uninsured are dispersed among us doesn't change the moral or economic calculus. We're the only rich nation on the planet where getting sick can mean going bankrupt. Striking down the Patient Protection and Affordable Care Act would be tantamount to dooming 30 million Americans to this plight for the decade or two that will go by before a president dares to push this issue again.

Second: The individual mandate is a Republican idea. The late senator John Chafee made it the centerpiece of the GOP alternative to Clintoncare in 1994. Newt Gingrich supported it back then, as did the Heritage Foundation. Mitt Romney based his entire Massachusetts reform on it. Republicans stopped liking the idea only when Barack Obama embraced it.

Third: Consider Switzerland's model. The journal Health Affairs asked former Swiss health minister Thomas Zeltner why his country's individual mandate was acceptable to a nation known for ardently defending personal freedom. "That's easy," Zeltner replied. "We will not let people suffer and die when they need health care. The Swiss believe that in return, individuals owe it to society to provide ahead of time for their health care when they fall seriously ill. At that point, they may not have enough money to pay for it. So we consider the health insurance mandate to be a form of socially responsible civic conduct. In Switzerland, 'individual freedom' does not mean that you should be free to live irresponsibly and freeload from others."

This is how Republican reformers talked before Obama endorsed the idea.

Fourth: If GOP opposition were principled rather than political, the mandate's alleged constitutional defect could be easily fixed. As Paul Starr and others have noted, all you have to do is design incentives to purchase coverage instead. For example, those who don't purchase insurance would be deemed ineligible for five years for the Affordable Health Care Act's protection against being denied coverage for preexisting conditions. Republicans crafted similar incentives to encourage seniors to sign up promptly for Medicare prescription drug coverage (at lower premiums) under President George W. Bush.

The GOP hasn't said a word about these easy fixes. Nor have they offered a Republican alternative that would cover more than 3 million of the 50 million uninsured. Why not? Because doing so would require billions in subsidies for low-earning uninsured workers who don't vote Republican, resources the GOP would prefer to devote to tax cuts for the top.

Fifth: As I've argued before, health reform's foes should be careful what they wish for. No one doubts that government-run Medicare is constitutional. The only way to move toward universal health coverage via private insurers is to include two provisions. You have to require that everyone be in the insurance pool (or else healthier people will opt out and premiums for those left will thus rise, leading still others on the healthier side to opt out and premiums to rise again in a classic insurance "death spiral"). And you need to subsidize low-income folks who need help buying a decent policy.

If the GOP succeeds in invalidating the one way to use private health plans to achieve universal coverage, frustrated Americans will eventually say, "Just give us single-payer and be done with it." I can't say whether that tipping point comes at 60 million uninsured or 70 million. But it will happen. In other words, for the sake of taking a near-term political bite out of the president, Republicans will assure the demise of the private-sector role they claim to hold dear.

Seen this way, your honor, a decision by this court to uphold the individual mandate would really be a victory for the GOP, a way to save the party from its own worst instincts. Compassion for millions of confused Republicans, not to mention millions of our uninsured neighbors, demands nothing less.

Over to you, Justice Kennedy.