, ,

Monday, the U.S. Supreme Court began a marathon three-day session debating the constitutionality of the Patient Protection and Affordable Care Act, signed into law by President Obama two years ago on March 23, 2010.

At the crux of the matter is whether the Federal Government can force citizens to engage in an act of commerce, namely, the purchase of health insurance. Referred to as the “individual mandate”-if people fail to purchase insurance-they will be subject to a tax penalty.

Four federal appellate courts have rendered decisions on the issue in the run-up to being heard in the Supreme Court. Two courts upheld the constitutionality of the Patient Protection and Affordable Care Act (often called “Obamacare” by Republicans), a third declared the individual mandate unconstitutional, and a fourth postponed any decision until taxpayers have started paying penalties for not purchasing insurance (satisfying a provision in the Tax Anti-Injunction Act).

A USA Today/Gallup poll conducted in February painted a sharply divided American public, with the most weighted opinion falling on the individual mandate: 72 percent believe it unconstitutional, while only 20 percent believe it constitutional.

“Obamacare is in direct violation of interstate commerce statute, invokes a restraint of trade, and puts the competition and/or individual at a disadvantage,” stated S. Hovis, one of three legal experts interviewed for this article.

Many conservatives fear a runaway train scenario where once the power is granted to the government forcing the purchase of a product (health care), there will be no end to further governmental intrusion into people’s lives.

St. Louis attorney Tom Appelbaum related some observations found at a recent moot court session covering the health care law’s constitutionality.

“The health care reform debate really centers on two conflicting conservative arguments: legislative supremacy versus federal overreach. On one hand, conservatives rail against judicial activists “legislating from the bench”-which clearly, overturning the health care law would qualify. On the other hand, the Federalist/Libertarian side of the Republican party caution against federal overreach and advocate for limited government-a position which would suggest overturning the law.”

St. Louis University administrative law professor Ken Warren commented on the likelihood that the Supreme Court would stay out of it:

“There is almost no real legal precedent to overturn-there have been numerous court rulings over the years that have used the commerce clause to uphold Congressional authority to regulate interstate economic activity.”

The author of “Administrative Law in the Political System” (Westview Press), Professor Warren states you can’t really understand legal decisions, “unless you understand the political environment in which they occur.” Warren also noted that the lower courts prior decisions regarding the Affordable Care Act have, “all fallen along partisan lines with Democratic courts upholding the law, and Republicans overturning it.”

In this light, who stands to benefit politically?    

Warren continued,

“The Supreme Court will rule on anything. They have arguments on both sides of an issue giving them the flexibility to arrive at what many times becomes more of a political decision rather than legal one.”

From a political perspective, some observers think overturning the bill could create a blowback scenario with Democrats rallying in the fourth quarter of the 2012 election year, while others feel overturning the law would be a fatal blow for President Obama’s reelection ambitions.

However, the fact remains that our health care system is a huge part of our economy-and its dysfunction is having an extremely negative effect. In many ways it has detached itself from being subject to healthy market forces, and has become anti-competitive, rife with waste, fraud and largesse. People are in fear of going bankrupt because they might become seriously ill, and people who do get ill are going bankrupt and losing their entire life savings. People are dying unnecessarily because they don’t have access to basic preventive care. And all this time medical science continues to advance with new discoveries in gene therapy, stem cell research and nanomedicine-and as treatments become more complex and increasingly reliant on advanced technology-costs will always rise.

With a fierce attachment to market populism, America has seemed to have met a stumbling block with health care reform. Where universal care is considered a basic right in every other Western industrialized nation, the US is languishing with an elitist medical system that turns away millions to protect corporate profits and puts America at a competitive disadvantage with other democracies around the world.

As flawed as the Affordable Health Care Act might be, it is a first step toward fixing a broken system that costs too much and leaves nearly 50 million Americans vulnerable without health care insurance. Regardless of the upcoming SCOTUS decision on health care this summer, the historical track record shows a very clear path of where we’re headed as a civilized society with a steady increase in universal public services. The quintessential question for us to consider is:

Should health care be a basic human right, or only a privilege?