My first thought on perusing the briefs filed in the combined cases was to notice what wasn’t there: any involvement on the part of Corporate America.
For the past 20 years, big business has complained endlessly about escalating health-care premiums, which they correctly blamed on “cost-shifting,” including paying indirectly for the free care provided to the workers at firms that did not provide health benefits. They wanted an end to fee-for-service medicine that rewarded doctors for providing more care than necessary. Some even talked of reforms that would begin to move the country away from an employer-based insurance system.
Yet despite the fact that “Obamacare” did all of those things and more, there was not a single brief in support of the law from an organization representing big business.
Small businesses have spent the past two decades complaining that the reason they don’t offer coverage is that it’s too expensive because they don’t get the large-group and community rating advantage. So how did the National Federation of Independent Businesses respond to a law that assured small businesses the benefits of large-group purchasing and community rating and threw in billions of dollars in subsidies to boot? It signed up as one of the named plaintiffs challenging the constitutionality of the new law.
It’s hard to know what the business community will demand if the Supreme Court overturns the health-care law. At that point, however, it will hardly matter, since they will have lost all political credibility on the issue, particularly with the Obama White House and anyone who happens to be a Democrat.
That said, I don’t agree with the conventional wisdom that, in light of last week’s oral arguments, it’s a sure thing that the court will overturn the law or its individual mandate.
Judging from their blatantly partisan bleating from the bench, it is certain that Justices Antonin Scalia and Samuel Alito will join Clarence Thomas in doing whatever it takes to impose their conservative, free-market, nothing’s-changed-since-1788 agenda on the country.
An essential element of the Republican strategy these days is that, whenever confronted with an obvious failure of the free market, the correct response is always to try to turn the tables and blame it on misguided government policy. So it was this week when the solicitor general and several justices tried to make the obvious point that one reason so many Americans lack health insurance is that the market is inherently unlike any other in that we don’t deny medical care to sick people who can’t pay for it. It is from this anomaly that springs the “individual mandate,” a requirement that all citizens buy health insurance, to prevent them from becoming free-riders on a system paid for by others.