Solicitor General Donald B. Verrilli Jr., the Obama administration’s lawyer, didn’t do himself any good yesterday when he argued that health care is no more than a product on the market that everyone must eventually buy. This left the door open for Justice Antonin Scalia to make a buffoonish analogy:
Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.
Verrilli tried to explain why the health care market is different from the food market, but he didn’t do a good job. So Scalia interrupted again and asked if there is a “principled basis” for distinguishing the health care market from any other market.
Verrilli, apparently intimidated by the buffoon, continued to flounder until Justice Ruth Bader Ginsburg jumped in to save his ass:
Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money. And the tangible result of it is — we were told there was one brief that Maryland Hospital Care bills 7 percent more because of these uncompensated costs, that families pay a thousand dollars more than they would if there were no uncompensated costs. I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.
If Barack Obama’s health care law is overturned, it might be because he decided our health care options should be limited to the realm of commerce on the “free market” — i.e., to the for-profit insurance companies that have been ripping us off for decades. Obama should have pushed from the beginning for universal health care as a human right, or an essential component of the social contract, not as a product we must buy. (Same old question for Obama: Why did you quit on single payer and then the public option, without a fight?)
The administration isn’t likely to win an argument about the market with a squad of reactionaries — Scalia, Roberts, Thomas, Alito — and a so-called moderate (Kennedy) who often takes sides with the reactionaries.
Footnote: In case you aren’t already alarmed by this case, Michael Kinsley noted Tuesday that the reactionary members of the Supreme Court might be aiming to derail “the use of federal power under the Commerce Clause, which gives the federal government the authority to ‘regulate commerce.’ Even the 1964 Civil Rights Act is considered constitutional as a regulation of commerce.”