“Chief Justice Robert’s Decision – The Opportunity”

Sydney M. Williams

Thought of the Day

“Chief Justice Robert’s Decision – The Opportunity”

July 2, 2012

In a surprise decision, and one that may prove wise, Chief Justice John Roberts preserved the dignity of the Court, momentarily halted political sniping from the Left (though that seems over) and, importantly, may have reined in the Federal government whose usurpation of power has been growing unchecked for decades. The price paid was to preserve the decidedly misnamed Affordable Care Act. In doing so, he essentially said to the people, if you don’t like the bill go to the polls in November; and to Congress he said, amend the bill. As one commentator noted, Roberts may have been playing chess while everyone else was playing checkers.

As Chief Justice, John Roberts bears responsibility not only for interpreting the Constitution according to his judicial dictates, but also for the respect in which the Court is held. For several decades, long before Bush versus Gore, the Court’s reputation has been sullied. It has been accused of arrogating power, and acting in a blatantly, politically partisan manner. Complaints have come from both the Left and the Right, though most vociferously and aggressively from the former. The New York Times, in their supercilious way, referred on Friday to what had become an “increasingly conservative Supreme Court.” In the same editorial they wrote of Chief Justice John Roberts as being considered by many “moderates and liberals to be a highly partisan actor dedicated not just to a conservative judicial philosophy but to the political aims of the right wing of the Republican Party.” One presumes they were speaking for themselves.

It has been, in my opinion, the President and Congress that have unjustifiably appropriated power, not the Court. In many respects, the results announced Thursday were the best they could have been. There is little question that had Chief Justice Roberts sided with the conservative wing, the hew and cry from the President, his allies in Congress and Left-leaning media would have been of an activist and biased Court, bent on destroying the will of the people. Politicians and Justices only act reasonably, according to those on the left, when decisions accord with their agenda. Even so, the New York Times’ Sunday lead editorial entitled “The Radical Supreme Court” spoke of “fractiousness” on the Court, which has “regularly” and “aggressively” stepped “into political issues to empower the Court itself.” The Times’ contrasts the conservative majority with the “moderate minority!” The myopic editors of the Times must only read news that conforms to their pre-determined opinions.

In an elegant and judicially incisive way, Mr. Roberts halved the apple. “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause. That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.” (Emphasis mine.) Continuing in their patronizing manner, the Times implied that Roberts’ distinction between Congress’s power under the Commerce Clause and their power to tax was likely “not fully understood” by conservatives. I suspect they are mistaken.

There is little question that our current healthcare system needs repair. Too many of our citizens cannot afford adequate and affordable healthcare. The United States spends more money, on a per capita basis, on healthcare than any other nation. Yet we are not the healthiest nation by most measures. According to most reports, Japan, Sweden, Iceland and Switzerland rank the highest, with the United States failing to make the top ten. The reports look at life expectancy at birth, infant mortality, density of physicians, pollution, access to clean water, and good sanitation.

Republicans, in my opinion, would be making a mistake should they attempt to repeal the ACA through the budget reconciliation process, or in any other way. The country is divided enough. What they should be doing is looking for ways to amend it, keeping what’s attractive, while making it more patient-centric and eliminating waste. The Act should be re-written, so that it is clear that the penalty is a tax. Honesty in government, while rare, is better than subterfuge, which is more common. This is the opportunity offered by Chief Justice Roberts.

Here are three suggestions. First, lawmakers should allow for a national insurance charter that, one, allows insurance companies to compete across state lines; and, two, permits consumers to design their own policies (much as they do for home and auto insurance.). The result would be a boom in low-cost, high-deductible plans that insure individuals and families against catastrophic occurrences. Individuals would be responsible for their regular healthcare – general checkups, etc – anything that falls into the category “deductible.” Doctors and other providers would find the need to compete on a basis of price and value.

Second, there should be no differentiation, from a tax perspective, between insurance provided by an employer and purchasing insurance on one’s own. It is patently unfair that an employer’s payments of health insurance premiums are tax deductible, while a family that self-insures are not, especially as more and more Americans are self-employed. In fact, a smaller percentage of the working population today is on employer-based health plans (55%) than in 1953 (63 percent.)

Third, tort reform should be integral to healthcare reform. Frivolous lawsuits have caused insurance premiums paid by doctors and hospitals to rise radically – costs that are passed on to patients. For fear of being sued, many providers, both doctors and hospitals, prescribe more tests, etc. than are reasonable, again at costs passed on to patients. (Our current fee-for-service system has the same effect.) It is not that I disapprove of all litigation lawyers; in fact they serve the very valid purpose of keeping doctors and hospitals honest, but the process has gone too far. There should be limits on awards. Class action suits are among the worst, as plaintiffs receive very little in terms of compensation, while lawyers often take home enormous sums. In fact, one could argue, a class action suit is nothing more than a vehicle to enrich trial lawyers.

There are aspects to the bill that are popular and good: Allowing children to remain on their parent’s policies until the age of 26; permitting patients with pre-existing conditions to buy insurance at a reasonable price: extending coverage to those too poor to buy insurance on their own, but too wealthy to qualify for Medicaid. However, entitlements are not free. Free is a word politicians love to toss out to great applause. But somebody always has to pay. Having consumers more involved in the process of both purchasing healthcare and health insurance is the fastest way to bring down costs. Nevertheless, there should be a way of folding remaining entitlements into a patient driven plan.

There have already been improvements in efficiencies; clinics being one of the more visible. The growing number of hospitals and doctors that maintain electronic records is another, though universal standards need to be adopted. But for the market to operate most effectively and efficiently, reform measures such as those mentioned above should be implemented.

It is this opportunity that I see as the consequence of Chief Justice John Robert’s decision on Thursday – an opportunity for the people and Congress not to repeal the notion of healthcare reform, but to amend it in a manner that makes it more market driven, provides greater participation on the part of the patient, and removes the threat of frivolous lawsuits that serve no one other than a cadre of parasitic and unscrupulous malpractice lawyers.