Supreme Court watchers are parsing every word the justices uttered this week, trying to predict which way the court will vote on the Obama health law.
But if the Court votes to uphold the law's mandatory health insurance, that ruling will turn on a lie.
|The 26 attorney generals leave the Supreme Court after the final day of oral arguments.
The Obama administration's lawyers argued that all Americans consume healthcare, therefore they are engaged in health commerce, so Congress can use its commerce power to compel them to buy insurance.
The premise — that all Americans consume healthcare — is false. Yet it was repeated over and over during the oral arguments in the high court, and virtually no one challenged it.
The truth is half of Americans consume virtually no healthcare. That fact proved decisive to the 11th Circuit Court of Appeals, the only federal appeals court to reject the false claim that all Americans consume healthcare and the only federal appeals court to strike down the individual mandate.
Judges Frank Hull and Joel Dubina, the bipartisan team that ruled against the mandate in August 2011, warned that the mandate is "woefully over inclusive." It conflates "those who presently consume health care with those who will not consume healthcare for many years into the future."
According to the federal government's own data, 50 percent of the population needs so little healthcare that they account for only 2.9 percent of the nation's healthcare spending.
Their mean expenditure for an entire year is a microscopic $238. (Agency for Healthcare Research and Quality, January 2012.) Many people don't need healthcare until they reach retirement age. For the under age 65 population — the group affected by the mandate — far more than half are medical non-consumers year after year.
They are healthy.
The Obama administration lawyers argue that all Americans consume healthcare and are engaged in healthcare commerce, so Congress can use its Commerce Clause power to compel them to pay for their care via insurance.
Healthcare consumption is "universal" and "inevitable," the administration's lawyers insist. No one is "inactive" or uninvolved in the health care marketplace.
Hull and Dubina used facts to gut that Commerce Clause argument. Many
people go for years without needing healthcare. The true purpose of the mandate, said the judges, is to force healthy people to buy expensive health plans they don't use in order to subsidize insurance companies — which in turn are compelled to provide unlimited coverage to people with chronic illnesses and pre-existing conditions.
That healthcare non consumer who uses a mere $238 a year of care would have to have a plan worth $3,588 in 2016, according to the Congressional Budget Office, or a family plan valued at $11,026.
Insurers collect mandatory premiums from the healthy to pay for politically popular changes in the insurance laws.
The 11th Circuit ruling paved the way for the showdown earlier this week,
when lawyers for the 26 states and other parties challenging the law went up against the Obama administration's legal team during three historic days of oral arguments. Day two focused on the mandate.
The Obama administration lawyers will claim that the individual mandate is intended to prevent "free riders" from using healthcare without paying for it and shifting the cost onto others.
But Hull and Dubina cited copious statistics to rebut that claim. They showed that over half of free riders are either illegal immigrants (exempt from the mandate) or low-income Americans, who will get coverage under the new law's vast expansion of Medicaid.
The mandate affects neither group. "In reality, the primary persons regulated by the individual mandate are not cost-shifters but healthy individuals who forego purchasing insurance." That 11th Circuit ruling provides a window on what is likely to be the key issue.
Hull and Dubina concluded that compelling people to enter healthcare commerce is different from regulating them once they are consumers. Only the latter is constitutional.
Hull and Dubina said that the federal government has compelled Americans to do only three things by virtue residing in this country: serve when drafted, file income taxes, and complete the Census.
When Congress passed the Flood Insurance Act of 1968, it devised incentives for people residing in flood plains to buy coverage but never considered compelling such a purchase.
Yet now Congress seeks to compel Americans who do not need medical care to buy costly health insurance plans — like forcing Americans who live on top of hills to buy flood insurance.
Seeming to ignore what the 11th Circuit said, virtually all the participants in this week's Supreme Court showdown simply presumed that healthcare needs are "universal."
The administration's lawyers repeated the claim, lawyer Paul "Clement, arguing for the challengers, didn't question it (facts are seldom contested at the appeal level) and the Justices for the most part repeated the false claim as well.
Justice Kagan in fact, said that the argument over the mandate is simply over "when" Americans have to pay for their care, and paying ahead is not so different from paying at the point of care.
How sad that the outcome of this epic constitutional struggle might turn not on founding principles but on a lie.
Betsy McCaughey is the former lieutenant governor of New York State and author of the new e-book, "DeCoding the Obama Health Law." She is president of Defend Your Healthcare and founder of the Committee to Reduce Infection Deaths. Read more reports from Betsy McCaughey — Click Here Now.
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