06/14/2012 12:24 pm ET Updated Dec 06, 2017

Supreme Court Conservatives: Clueless, Callous and Poised for a Power Grab

2012-06-13-justices.jpgMy family nervously awaits the Supreme Court's decision on the Affordable Care Act that will prohibit insurance companies from denying coverage to people with pre-existing conditions starting in 2014. A decision striking down the individual mandate, or worse still the entire law, will spell doom for my kids who are uninsurable in the individual insurance market because they are chronically ill with Type 1 diabetes and epilepsy.

Anyone following the case will remember Attorney General Donald Verrilli's rough start to the argument on the individual mandate. How could we forget the sips of water, the stumbling and coughs, then more sips and coughs, and finally, the stammering?

But between the coughing, stammering and stumbling was the beginning of a cogent explanation of how insurance reforms in the Act -- including the individual mandate -- will fix the vexing problem of insurance companies refusing to sell policies to people with pre-existing conditions.

General Verrilli didn't finish his explanation because Justice Scalia interrupted to ask the first question of the day. His question -- which went unnoticed by media -- betrayed something remarkable and shameful for a Supreme Court Justice deciding the destiny of more than 30 million Americans who will directly benefit from the law. The question exposed Justice Scalia's profound ignorance of Congress's rationale for the individual mandate.

Most Americans have no idea why Democrats imposed the exceedingly unpopular mandate - other than Republicans' claim that it's a government takeover of health care. This is no wonder because the Obama administration has treated its marquee accomplishment like a political hot potato and has failed abysmally to explain the mandate or promote its many benefits.

But Justice Scalia has no excuse. The individual mandate is the constitutional issue in the case. Didn't his clerks write a memo on this subject? Didn't he read the government's briefs?

Justice Scalia's telling question, paraphrased here, was: Why can't Congress simply require insurance companies to cover everyone regardless of whether they're sick and directly prohibit them from charging sick people more than healthy people?

The answer is a little complicated, which explains why the public believes the Tea Party's talking points. So here goes: The individual mandate is necessary to achieve a financially sound system of health care coverage. Without a mandate, healthy people won't buy coverage until they become ill. With only sick people in the pool, claims and premiums will skyrocket, leading the inevitable collapse of the entire system. There -- that explains it.

During the argument, the Court's conservative justices portrayed the mandate as coercing Americans to buy insurance they don't want or need. Justice Scalia joked that if the government can require citizens to have health insurance, it could force us to eat broccoli and go to the gym. I've come to expect this kind of hyperbole from Tea Partiers on Medicare and people like the justices who have great insurance and taxpayer-subsidized premiums through the Federal Employees Health Benefit Plan.

So who are the victims of the individual mandate? Why must the Supreme Court protect them from this tyrannical law? The conservative justices should know from the scores of briefs filed in the case that the vast majority of Americans -- an estimated 80 percent -- will automatically satisfy the individual mandate when it takes effect in 2014. This is because they already have coverage, which they can keep, through their employer, an individual health plan, Medicare or Medicaid. Millions more will be exempt for other reasons including their low income.

It turns out that the uninsured who will be "forced" to buy insurance are precisely the people who will benefit from the law, including the 13 million uninsured young adults. Justices Scalia and Alito presumed that young adults are healthy and don't want to spend their pennies on health insurance. But the fact is that young adults are disproportionately uninsured -- not by choice -- but because they work at low-paying jobs without benefits. Their health has suffered because they can't afford needed care, and many are saddled with crippling medical debt, according to a recent study.

The same is true for the rest of the 49 million uninsured. Most are working poor whose employers don't offer coverage. They want health insurance but can't afford it, a problem that will be solved by premium subsidies and the Medicaid expansion. Some 30 million of these uninsured Americans -- and many like my kids who have pre-existing conditions -- will breathe a collective sigh of relief if the Act takes full effect in 2014.

So it appears that the Court's conservative bloc is ready to gut the Act or toss the whole thing -- without concern for the health and financial well-being of millions who will benefit -- because of a mandate they have not taken the time to understand.

Prominent constitutional scholars, including Reagan's former Solicitor General Charles Fried, believe that Congress had ample authority under the Commerce Clause -- as interpreted by longstanding precedent -- to impose the mandate as part of a comprehensive scheme for regulating our health care markets. Many, many cases acknowledge Congress's plenary power (read: sweeping and nearly absolute) under the Commerce Clause.

Under our Constitution, Congress -- not the Supreme Court -- has the power and the responsibility to address national problems like our ineffective, unjust and staggeringly expensive health care system for our collective well-being. Perhaps cooler heads will pull back from jumping into Congressional sausage-making on the realization that health care is not broccoli, and access to health care is not a joke, except to some who have it.

The Court waded into presidential politics in Bush v. Gore to hand the election to George Bush and then went out of its way in Citizens United to open the spigot of corporate money into our electoral process. As a result, the Court's approval rating has plummeted. The justices have been forewarned: the public knows a power grab when they see one.