Thursday, March 29, 2012

The People’s Advocate at the Supreme Court Bar

H. Bartow Farr, III, Esq.
The Patient Protection and Affordable Care Act (PPACA) has finally met its challengers in the highest Court in the land and following the three days showdown, there’s nothing left but watchful waiting for the Supreme Court to hand down its final decision. All media outlets from left, right and supposedly middle are covering the events and hundreds of experts are ready to make predictions based on the inflections in one Justice’s voice. I made a point to not read any of that, and if you are an informed citizen who still insists on making his/her own mind, the very impartial SCOTUS blog is the place to go for links to the audio and transcripts of all oral arguments and all briefs submitted to the Court. By this logic you should probably not read what follows below either, but if you do, this is an unorthodox (neither left nor right) look at the proceedings from a citizen's point of view, a perspective that struck me as lacking in the proceedings themselves.

The main contenders were the Republican Governments of 26 States against a Federal Government controlled by a Democratic administration. There were also some private plaintiffs with a strong Libertarian argument, but their contribution to the subject is not clear to me, and is probably just a largely inconsequential sideshow. Generally speaking local governments were wrestling with central government in an outdated Federalist argument, where the people themselves have no standing.

The main event took place on Tuesday, March 27, where the constitutionality of the individual mandate, requiring every American to buy health insurance or pay a penalty, was argued, with the Federal Government arguing that its power to regulate interstate commerce includes the right to mandate that everybody buys health insurance, and if not, then the penalty should be viewed as a tax. The State Governments argued as expected that this gives the Feds unlimited power and a penalty is not a tax. The lively debate came complete with broccoli, burial insurance and babies being denied care at the hospital, hypotheticals. But here is what I found interesting: at the heart of the Federal Government argument was the contention that the uninsured are basically offloading their health care costs on the insured and society in general, therefore we must mandate that they buy insurance and pay their fair share. The States on the other hand, argued that forcing healthy people who don’t want to buy insurance to subsidize the sick is really not fair. Most Americans, as everybody agreed, are already purchasing health insurance, so who are these freeloading uninsured?

Well, it seems that 68% of the uninsured are under 140% of the Federal Poverty Level (FPL), and 95% of them are below 400% FPL. A full 45% of poor adults and 17% of poor children (under 100% FPL) are uninsured. Are these our freeloaders? Are these our interstate frequent travelers who impose huge uncompensated expenses on States where they don’t live? Are these poor people without insurance seeking out States that enacted guaranteed-issue and community rating insurance laws and move there en-masse? Is anybody else doing that? Do we even know what problem we are trying to solve?

Another pearl from the March 27 arguments was the realization that the States concede that the Federal Government has the power to require that people pay for health care with insurance. They only differ on the timing of buying the necessary insurance instrument, with the State Governments insisting that a free citizenry should have the right to purchase insurance en route to the ER, if they so choose, and the Feds arguing that they must buy insurance the day they are born. Does that mean that one cannot pay for health care with cash, or chickens? Will they check to see if you have insurance and if so, cash payments will be disallowed? What do you do if you’re one of the penalized? Do you get to pay cash, or do you get some services in return for all those penalties you paid into the system?

As interesting as the constitutionality arguments were, I found the session on severability to be most enlightening. On Wednesday, March 28, the Court grappled with the next steps, if the individual mandate is by any chance found to be an unprecedented and unlimited expansion of Congress powers and thus ruled unconstitutional. The 26 Republican governed States argued that the Court should throw out the entire Obamacare legislation with the mandate, because everything else in the PPACA is either hinging on the offending mandate or is unimportant. This is not surprising, since the war on the individual mandate, which is the brainchild of an ultraconservative foundation, is just a battle in a much larger war to remove the current Democratic President from office. The Federal Government began its arguments by mentioning the millions of citizens that are not standing before the Court and how the Court should nevertheless give them consideration. That was beautiful, but it didn’t last long, because eventually it became clear that the Federal Government is asking the Court to strike down both guaranteed-issue and community rating clauses along with the individual mandate, if found unconstitutional.

The Federal Government, true to form, was arguing on behalf of its insurance companies patrons. Unless the Feds can guarantee a certain number of customers, there is no way that insurers will agree to sell their wares in a non-discriminatory manner, because discrimination is how insurers make money, and no government should infringe upon basic rights of corporations. It fell to an attorney independently appointed by the Supreme Court to argue for the people, and (very eloquently) make the simple point that the purpose of the PPACA was not to provide customers to insurers, but to make health care affordable to all Americans, including poor and sick ones. The individual mandate is just one tool in an arsenal of tools to accomplish that end. It may be a very useful tool, but it’s not the only tool, and therefore if it is found unacceptable, it should be severed from the legislation and removed without throwing out the baby with the bathwater.

So the People finally got their 15 minutes in Court, represented by Court appointed counsel, as paupers usually are. Whatever the Court decides in this case, I will forever be grateful to the Supreme Court of the United States, the nine unelected Justices, who saw fit to solicit someone to speak for the People, something that neither States nor Federal Governments seemed to be too terribly inclined to do. And I am grateful that the Court chose H. Bartow Farr, III, Esq. to represent us in this matter, since his oral arguments were second to none, and may God grant the Court the wisdom to do what Mr. Farr advocated that they do, and the People shall prevail.

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