Solicitor General Donald B. Verrilli, Jr. had a tough day at the office this week. His performance before the Supreme Court defending the constitutionality of the Obama administration’s Patient Protection and Affordable Care Act (affectionately referred to — now even by the president — I won’t go there — as “Obamacare”), was so dubious as to cause even his “friends” on the left to sum it up this way: a “spectacular flameout,” “unfortunate” and a “choke.”
But Verrilli should have known that this was not going to be “just another day before the Supreme Court.” From the first moments of questioning by the justices, it was clear they came to the bench prepared to brandish their constitutional swords even if the Solicitor General or any of the other lawyers scheduled to present to the court were not. Even on the technical arguments on whether the Anti-Injunction Act applied (the Act is a 19th-century statute prohibiting bringing a lawsuit against a tax before it takes effect) the justices seemingly rejected the claim by the government that the penalties in the health care law are taxes — thereby making it too soon for the court to take up the case against the health care law. Justice Samuel Alito caught the government arguing out of both sides of its mouth when he noted “today you are arguing that the penalty is not a tax. Tomorrow you will be back and arguing that the penalty is a tax.”
The lawyers and everyone listening had to think to themselves: “This is going to get ugly.”
But it was ugly long before anyone would stand before the Court to argue for or against a national health care law. Attempts at creating a government-centered, if not government-run, health care system have long bubbled just beneath the surface of legislative action. But it wasn’t until Hillary Clinton proposed a massive overhaul of our nation’s health care system back in 1993 that such efforts stood in stark relief. Indeed, the core of Obamacare rests on the idea (not supported by Barack Obama when he was a presidential candidate) that the federal government can require every citizen to obtain health insurance or pay a fine if they don’t (the individual mandate) — an idea first proposed by conservative economists in the 1980s and embraced by many congressional Republicans in response to “Hillarycare” and its insidious government-run single-payer (universal) system.
Nevertheless, it would take a public outcry heard at town hall meetings across the country in 2009 before Republican leaders would begin to “rethink” their position on the individual mandate. For many conservatives (and not necessarily just Republicans) the effort to create such a mandate was an unconstitutional takeover of health care in America; and more frighteningly, a usurpation of the individual’s freedom to choose the kind of health care he or she needs or wants, if any.
But the Obama administration still insisted on pushing the limits of what the bureaucrats could get away with in a government run health care system by arguing for a brand-new, government-run insurance system that will compete with private insurers. The pitch was simple: If you are an employer or a private citizen and you don’t want private insurance, you are “free” to go with government coverage instead. At first glance, that seems harmless (it always does). But the American people figured out, among other things, that using the word “free” or “freedom” in a sentence doesn’t make one free.
Thus, the battle lines were drawn and, for the first time on a big issue like health care, White House and legislative leaders from both parties found there was no antidote to a true “freedom” argument.
Consequently, beyond anything said in the Supreme Court this week lies a tough choice for the Court (to uphold the act or not in whole or in part) and a new reality for Congress (the issue immediately becomes grist for the presidential mill with Congressional seats on the line).
Regardless of the Court’s decision, Democrats and Republicans are already spinning their web of conceit that the decision will be a “victory” for them. However the Court decides, it will only heighten, not diminish the already poisonous differences between the two parties on the federal government’s role in the health care decisions individuals will have to make.
Instead, of stoking those differences, our leaders should start any new discussion with the question posed by Justice Anthony Kennedy: “When you are changing the relation of the individual to the government in this way…a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”
I fear the President and the Congress will be too busy fighting to even answer it.
Michael Steele served as the first African-American chairman of the Republican National Committee. He is a former lieutenant governor of Maryland and a political commentator. He will be providing commentary on all things politics for BET.com each week.
The opinions expressed here do not necessarily reflect those of BET Networks.
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