Thank you for taking the time to submit questions using the hashtag #AskSUMed or the comment section on Scope. Here are my answers.
Max asks: You mentioned your support of the individual mandate. Is this a legal or personal view – or both?
Both. As a legal matter, I think the Court’s precedents are most easily read as finding this within the Commerce Clause. After all, just a few years ago the Court, with the glowing agreement of Justice Scalia, held that growing marijuana in California, with California materials, for sale and use in California, involved interstate commerce. The idea that this is requiring people to participate in commerce is a little different, so there is no direct precedent, but I think the Court would have to make more new law to find it unconstitutional than to find it constitutional.
On a personal level, I think it is bizarre that more than 15 percent of our fellow Americans do not have health coverage; we are the only halfway rich country with such a record. I would rather try to fix that by a system that gives individuals some choices among privately competing sources of health coverage than by a fully federally controlled system. I think it is ironic that conservatives are arguing to block change that preserves some choice and some competition, when they know that there would be no strong constitutional arguments against a single payer system. The current health care financing system in this country is terrible and heading toward a catastrophic failure. At this point, I think something like the Obama system – or the Romney Massachusetts plan, or Alain Enthoven’s managed competition plan, or the Clinton health plan, or the early 1990s Heritage Foundation plan on which many of these are based – is a better way forward. But I would (reluctantly) take single payer over the present system, especially as that system will look in a few years.
Michelle asks: There has been much discussion about the three days of oral arguments. My question is what happens at the end of those three days? Will the fate of the health-care act be known on Wed., or are we in for weeks/months of uncertainty?
Set your alarm clock for the end of June. The Court tries very hard – and almost always successfully – to decide all the cases it hears arguments on in one term (October to the end of June) during that term. The more complicated the case and the more individual opinions (concurrences and dissents, along with majority opinions) are written, the longer the writing process takes. June 30 is 94 days away – which is quite soon for a case of this complexity and magnitude, let alone one where many justices are likely to want to write opinions, whatever the outcome. June 30 is a Saturday this year. I suspect they’ll shoot for Friday, June 29, but Monday, July 2 wouldn’t shock me.
LS asks: Will the Affordable Care Act survive without the individual mandate?
I talk about this at length in the first part of my Day Three post. If the Court strikes down the individual mandate, it seems to me very likely that the Court would also strike down some of the provisions of the Act most closely related to the mandate, such as the guaranteed issue and required community rating provisions. I think it is very unlikely it will strike down some parts of this very broad and, to some extent, miscellaneous statute. The Act became something of a “Christmas tree,” with provisions attached to it like ornaments that were there only because this bill was a handy place to attach them. The new federal law regulating how biological products will be regulated after their patents expire, for example, is in this Act but really has nothing to do with the mandate. Where exactly the Court would draw the line remains to be seen, but I think it would draw such a line.
Hank Greely, JD, is a Stanford law professor and an expert on the legal, ethical, and social issues surrounding health law and the biosciences. He is director of the Center for Law and the Biosciences, and he chairs the steering committee of the Stanford Center for Biomedical Ethics.