04/04/2012 12:05 pm ET Updated Jun 04, 2012

Supreme Court to Obamacare: Drop Dead?

It already seems clear that Americans do not have a basic, even constitutional, right to health care. We continue to enjoy our unique place among Western democracies in that regard. But Congress has "obligated" care for the uninsured in our nation's emergency rooms -- a right that opponents of Obamacare in their arguments before the Supreme Court characterized not as an achievement, but rather as a "problem" Congress created for itself and now cannot be permitted to solve with an insurance mandate. Or, as Justice Scalia chillingly put it, "Don't obligate yourself."

We can discern fairly clearly now from their oral commentary in three days of oral argument what Scalia and his judicial-activist colleagues would permit Congress to do under their restrictive reading of the "regulate commerce" clause of our Constitution:

1) Let the uninsured die in the street -- namely, Congress could permit or indeed even require hospitals and urgent care facilities to refuse care to anyone who could neither pay not produce proof of insurance. (The "Drop Dead" option -- and we thought the death penalty was on its way out.)

2) Require the uninsured to "purchase" insurance when they show up at the emergency room seeking care for themselves or their children -- at God-knows what ungodly price. This provision would seem to require some sort of "presumption of consciousness" to validate the insurance "contract" to comply with the "point-of-sale" theory of constitutional validity espoused by Obamacare's courtroom opponent. (Let's call this the "Alice in Wonderland" option.)

3) As Justice Ginsburg pointed out, if Obamacare had simply been set up like Social Security -- i.e., as a fully-governmental process where all are taxed to pay for health care through a federal single-payer -- then there would be no question of its constitutional validity under the "conservative" justices analysis. (One hesitates, but must reluctantly call this the "Public Option.")

4) Just penalize those who "default" on their hospital bills because they are uninsured -- but bear in mind that these defaults occur generally because the typical catastrophic illness bill far exceeds the average American annual income. (Undoubtedly, this option can only be called "The Rack," as all that will be left to get under such a constitutional penalty will be blood.)

5) Let the states decide whether or not to impose an insurance mandate, which the conservative Supreme Court majority concede the states can do under their "plenary" power, as they do when they require insurance proof from those who wish to drive cars. (We can only, with some irony, call this the "Romney Option.")

6) Require that persons only buy insurance coverage that they specifically need: only catastrophic care for the "healthy" young adult, per Justice Scalia -- of course, he doesn't mention prostate cancer care coverage for women, but then Roberts doesn't always seem to focus on the situation of women. (We'll call this the "No Size Fits All" option.) Here, the free market conservatives, of course, are attempting to impose judicial will on the structure of the insurance industry.

The Court's conservative majority seems to be caught up in what we might call the "broccoli patch." The Right Wing's absurd analogy (now adopted by Justice Scalia) is not apt. The insurance market (as Justice Kennedy belatedly recognized near the close of argument) has distinctive "network effects." Like a stock exchange, the more people who use it, the more valuable (and usually the less expensive) it becomes. This is obviously not true in any material degree with respect to broccoli -- and again, Justice Kennedy also acutely observed near the end that all big issues are matters of "degree."

If I buy broccoli, it does not make it cheaper, or taste better, for you. The same is true for the "car" analogy put forward by Justice Scalia -- if I don't buy a car, it does not make a car intrinsically more expensive -- any price effect is due to the laws of supply and demand, not to the nature of cars. It is precisely the nature of insurance, however, that it thrives on diversity of risk and a large scope of participants.

If the Court concludes that excising the mandate from the entire act without examining each and every issue of severability is just too onerous and inherently "political" a task, they might find a way out from the broccoli patch by remembering the route that essentially the same conservative majority took in their previously most political decision, Bush v. Gore. There, Justice Rehnquist opined that the decision was uniquely limited to its specific circumstances and would not hold as precedent for any other case. Why not do the same here, with what Justice Kennedy, and to a degree Roberts, seemed willing to consider a truly distinctive market for health care and insurance?

In any event, the bet here would be that the Chief Justice will write the opinion in the Obamacare case -- either as author of a 5-4 purely "party line" rejection of the statute, or, if he perceives Justice Kennedy will vote in its favor, as author of a most narrowly-circumscribed affirmation of the law's constitutionality.