The Health Care Mandate: Constitutional but still broken

RANCHO SANTA FE, Ca., June 28, 2012 – When Chief Justice Roberts delivered the opinion of the Supreme Court concerning The Affordable Healthcare Act today, it represented an interesting study of the current state of the three Branches of our Government in an indirect manner. The Executive Branch strongly sought healthcare reform; the Legislative Branch acted to advance that cause; and the Judicial Branch ruled on the constitutionality of the legislation that was passed. Now, let’s dissect what transpired starting with the Supreme Court’s decision.

We should all be encouraged by the Supreme Court’s ruling today. The Court clearly rejected the Federal Government’s main argument in favor of the individual mandate provision of The Affordable Healthcare Act that would have extended the reach of the Commerce Clause well beyond any plausible interpretation of the Constitution.

The Court also rejected the Government’s argument that the individual mandate provision was protected under the Necessary and Proper Clause.

However, the Court upheld the individual mandate provision on the basis that it was constitutional as an exercise of the Legislative Branch’s power to tax, and that such tax need not be apportioned uniformly among the States.

Historically, Chief Justice Roberts has exercised extreme judicial restraint. In his opinion today, he demonstrated that same characteristic. The Court was able to find a way to uphold legislation that was passed by duly elected officials predominantly because of that discipline.

It is interesting to note that the Chief Justice, an appointee of President George W. Bush, has been criticized in the past for this approach by those who are most pleased by the Court’s decision today, and he will undoubtedly be vilified by those who normally support him. That is the nature of serving as a Supreme Court Justice.

Unfortunately, 5-4 Supreme Court decisions often emphasize an unfortunate political division that should not exist within the Court. While the Chief Justice’s vote may have surprised some, the votes of the other Justices did not.

However, there is hope. A 7-2 vote on the Medicaid provision of The Affordable Healthcare Act (with only Justices Bader Ginsburg and Sotomayor refusing to break ranks) suggests that the Justices occasionally can separate themselves from the political underpinnings that contributed to their nominations. Let us hope that this becomes a trend going forward.

Was the decision correct? With regard to deferring to the Legislative Branch whenever possible: Yes. However, in that regard, the Supreme Court has historically looked into “legislative intent” (i.e., looking into the record of what the Legislative Branch intended the law to represent). In that regard, the ruling is more difficult to justify.

The legislative record is quite clear. Then-Speaker Nancy Pelosi and Majority Leader Harry Reid (and other Party spokespersons) adamantly asserted that the individual mandate imposed a fine rather than a tax on those who did not comply, and we were told to ignore the fact that the IRS would be the enforcement agency. The vast majority of other Democrat Members of Congress followed the Party line and reiterated this position in an exhausting number of interviews.

From the Executive Branch: the Director of the White House’s Office of Budget Management, Jeff Zients, testified before the House Budget Committee that the individual mandate fine in The Affordable Healthcare Act is not a tax, and more recently, Health and Human Services Secretary Kathleen Sebelius (a defendant in the case) testified before Congress that she thought the fine “operates in the same way a tax would operate but it’s not per se a tax.”

Of course, these expressed positions were politically motivated in order to conform to the President’s critical campaign promise not to raise taxes on people earning under $250,000 a year.  For example, on September 12, 2008, the President definitively stated, “I can make a firm pledge. Under my plan, no family making less than $250,000 a year will see any form of tax increase. Not your income tax, not your payroll tax, not your capital gains taxes, not any of your taxes” (emphasis added).

More specifically, in what is likely to become a famous interview with George Stephanopolous (on ABC News), President Obama repeatedly rejected the notion that the fine associated with the individual mandate was actually a tax. While the President is often positioned as a Constitutional scholar, it would seem the Supreme Court clearly disagreed with his interpretation this time.

Bottom line: today’s opinion supports the premise that the Supreme Court recognizes its responsibility, and at least some of its Justices are occasionally able to divorce themselves from their personal political persuasions. We can only hope that those in the Legislative and Executive Branches of our Government can learn to do what is in the best interests of the People rather than their Parties as well.

Does The Affordable Healthcare Act contain provisions that are in the best interests of the People? Yes! For example:

  • The portability of insurance is an important consideration.
  • The elimination of pre-existing conditions is an important consideration.
  • The elimination of the lifetime limitation is an important consideration.
  • The non-cancellation of insurance because of illness is an important consideration.
  • The elimination of indiscriminate increases in insurance premiums is an important consideration.
  • The extension of coverage under parental policies for those under 26 years of age is an important consideration.
  • The elimination of the prescription drug “donut hole” for seniors is an important consideration.
  • The elimination of co-payments for preventive care is an important consideration.
  • The ability to provide access to affordable healthcare is an important consideration.

These are all worthy of consideration. Unfortunately, The Affordable Healthcare Act was structured to address political issues more effectively than it was to address these stated concerns.  In truth, the Act, as drafted, is anything but “affordable.”

The Affordable Healthcare Act does not offer a workable solution. One does not lower the cost of healthcare by creating 159 new Federal agencies. One does not ignore tort reform (a major driver of the cost of healthcare in our current system). One does not cut Medicare by $500 billion just to achieve a desirable CBO score. One does not ignore an opportunity presented by the private sector to aggressively address medical fraud (more specifically, in the Fall of 2010, then-IBM CEO, Sam Palmisano, met with President Obama and offered IBM’s software and consulting assistance to identify $900 billion in medical fraud within the federal budget without charge; an offer that has been disregarded to date).

Rather than entrusting the process to a closed-door meeting among one political Party’s politicians (as occurred with The Affordable Healthcare Act – something the President also promised would not happen), rather than having to “pass the legislation to know what’s in it” as then-Speaker Pelosi infamously explained, rather than producing amendments to a bill of this importance in the eleventh hour without providing adequate time for review, and rather than ultimately signing the bill into law with hundreds of millions of dollars of political “pork” included to secure votes … why not pursue a more rational course?

As I mentioned in the healthcare section of my Presidential website, we would be better served to create a committee comprised of physicians, nurses, and other healthcare providers, pharmacists, insurance professionals, healthcare administrators, drug and medical research professionals, medical malpractice attorneys, and individuals with extensive patient experience to identify opportunities to improve the quality of care, increase the operating efficiencies, and reduce the cost of providing healthcare to American citizens.

The committee would be tasked with identifying and prioritizing the objectives of comprehensive healthcare reform (i.e., such as the “important considerations” previously cited). The committee’s recommendations would then be shared with the House Ways and Means Committee and the Senate Committee on Health, Education, Labor, and Pensions, and those Congressional Committees would be encouraged to consider each recommendation separately with an up-or-down vote to build bipartisan legislation. No pork; no pandering to special interests; simply legislation that remains true to resolving the challenge it was intended to address.

America clearly needs healthcare reform. It needs to be rationally addressed, and it needs to be framed in a manner that is singularly focused on the best interests of the People. In the interim, expect both Parties to try to exploit today’s Supreme Court decision to rally their bases and solicit donations to their campaigns.


T.J. O’Hara is an internationally recognized author, speaker, and strategic consultant in the private and public sectors. In 2012, he emerged as the leading independent candidate for the Office of President of the United States and the first nominee of the Whig Party in over 150 years.

This article first appeared in T.J. O’Hara’s recurring column, A President for the People, in the Communities section of The Washington Times.