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Tough Luck Constitution and Assault on Health Care Reform

Book: Extreme politics almost derailed Obamacare with frightening implications

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January 11, 2013 | by Pat Vaughan Tremmel

CHICAGO --- Chief Justice John Roberts stunned the nation in June when he provided the fifth U.S. Supreme Court vote affirming Obamacare as the law of the land under the Constitution's taxing power.

But at the same time the conservatives on the court dismissed the government's counterclaim to the central argument against Obamacare, holding that the mandate to buy health insurance would not have been permissible under the Constitution’s commerce clause.

That new reading of the Constitution potentially could curb Congress’ ability to address important national problems that can’t be addressed in any other way, as was the case with Obamacare, according to a new book by Andrew Koppelman, a constitutional law scholar at Northwestern University School of Law.

“The implications are frightening for the nation’s future,” he concludes. 

In "The Tough Luck Constitution and the Assault on Health Care Reform” (Oxford University Press, March 2013), Koppelman gives an eloquent historical context to health care law and politics in this country. As the title suggests, the book offers a hard-hitting point of view on Obamacare and the bloody politics related to its implementation. 

In essence, conservatives on the court endorsed a seriously flawed constitutional argument -- with extreme libertarian underpinnings -- that was designed for the sole purpose of defeating Obamacare, according to Koppelman, the John Paul Stevens Professor of Law at Northwestern.   

In the process, conservative lawyers, eager for a long time to limit Congress’ power to distribute resources, were able in an amazingly short time to advance a last-ditch, “tough-luck” reading of the Constitution, the book concludes.

Advanced by a fringe libertarian movement intent upon getting government out of most aspects of Americans’ lives, the political philosophy behind the tortured constitutional argument against the mandate to buy health insurance boiled down to: “If you get sick, it’s your tough luck,” Koppelman says.  

The argument against the Obamacare mandate, initially advanced in a December 2009 paper, essentially said that the government can’t make you buy things, but rather can only regulate activities in which you already are engaged.

In that paper, libertarian lawyer Randy Barnett was the first to seriously engage with constitutional precedent to tackle Obamacare as a serious infringement on the liberty of citizens. 

Even Barnett implicitly admitted to the constitutional holes in that December 2009 paper when he later radically revised its claims in his Supreme Court brief, Koppelman says. Yet, the argument in that paper was adopted as Republican orthodoxy only two weeks after Barnett presented it and just before it was about to be signed into law by the president.

The argument spread like wildfire from the lawyers to Congress to the presidential debates, and throughout the nation’s airwaves, before arriving at its intended destination, the Supreme Court.

"The legal arguments did not even exist when health care initially was being debated in Congress, and they are not based on constitutional principles,” Koppelman argues.

“The rule that conservatives proposed -- that the government can’t make people buy things -- was based purely on political motives and was tailored to block this one law after opponents had lost in both houses of Congress,” he says. 

The arguments were fueled by extreme libertarian views of the social contract and rest on the idea that it is fundamentally unjust to redistribute income to take care of sick people, according to the book.   

A fundamental question for Koppelman is: Is it worse to impose on people's liberty by making them carry health insurance or by allowing them to die of treatable diseases?  

Politicians found themselves in a peculiar position in which Obamacare was the only available avenue to covering 30 million people with health insurance, he says.

Barnett was never able to patch all the constitutional holes in the clever, creative and sophisticated brief that he presented to the Supreme Court, the book argues. But the conservative jurists’ endorsement of challengers’ arguments gave the Supreme Court a number of blank checks, Koppelman concludes. "How the court fills in those blanks when the next case comes up depends on who is on the court at the time,” he says.

“The principle that it is a violation of people's rights to require them to subsidize other people's medical care is now sitting in that opinion like a loaded gun,” Koppelman says. “And that's a repugnant and dangerous principle."

The new way of reading the commerce clause at best complicates Congress' power to deal with national problems that can't be dealt with in any other way. At worst, the case opens the door to an assault on Congress’ regulatory powers, he says. 

The fundamental reason the Constitution was written was to increase central power after the Articles of Confederation failed to address questions that could not be answered by the federal government or the states, the book stresses. 

The Supreme Court's previous limitations on congressional power have proved unfortunate; it has struck down anti-lynching laws, civil-rights protections and child-labor laws.

“But the challengers imagined a constitution in which the problem of health care couldn't be solved by anybody,” Koppelman says.

The book describes "Tough Luck Libertarianism" as "a vision of the heroic solitary individual, who sustains himself without any external support."

To the contrary, Koppelman endorses the view that everyone has a right to health care.

“Some members of the community are too poor to purchase that care, too sick to be insurable, or both,” he says in the book’s introduction. “They will only get care if the responsibility for paying for that care is shared by the society as a whole. That means some system of social insurance, of a kind that exists in every rich democracy in the world except the United States.

If you think there’s a right to health care, the American health care system before Obama was fundamentally broken…If there is a right to health care, the money has to come from somewhere.”

Koppelman’s blog posts on the topic have been wildly popular within academic circles, and a preview of his book was thoroughly vetted by challengers at a research roundtable that took place over the summer at Northwestern’s Searle Center on Law, Regulation and Economic Growth. His commentary for major media includes a May 2012 Salon article titled “Origins of a healthcare lie.”

Topics: Campus Life