Speaking of Passover Death and Resurrection—last week’s Supreme Court hearings on the Health Care Law passed by a democratically elected Congress bring to memory the teaching of theologian Paul Tillich, famous for speaking about the rise of Adolph Hitler.
The problem in that tragic era was the failure to recognize the demonic potential in every human proposal. For example, the glorious national future that lay just ahead, promised by both Nazism and Stalinism; a marvelously simple vision intended to destroy many old enemies (Jews, Socialists, etc.) and fulfill dreams. It’s truly monstrous new direction remained invisible to many followers as well as observers until it was too late. Tillich, not one of those, saw the human condition “in terms of disruption, conflict, self-destruction, meaninglessness, and despair in all realms of life.”
He taught that real grace, true revelation and newness of life could only be found through building a new and just creation for all humankind. He had many students, including Martin Luther King, Jr.
This all seemed especially applicable at last week’s Supreme Court hearing where twenty-six Republican states brought suit to declare the Patient Protection and Affordable Care Act unconstitutional. Paul Clement, their attorney, argued to everyone’s exhaustion that the law was dangerously coercive; its individual mandate a violation of the voluntarism and individual liberty at the heart of the Constitution.
The self-interest of the huge private sector health care industry was actually what was at stake. The pious advocacy for the constitution gave a patina of social concern for a common good that was seldom mentioned by Mr. Clement. The idea of a demonic that rises up in human affairs is here perfectly illustrated:
JUSTICE KAGAN: “Mr. Clement… why is a big gift from the Federal government a matter of coercion? …the Federal government is…giving you a boatload of money. There are no matching funds requirements, there are no extraneous conditions attached to it, it's just a boatload of Federal money for you to take and spend on poor people's healthcare. It doesn't sound coercive to me, I have to tell you.
MR. CLEMENT: Well, Justice Kagan, let me —I mean, I eventually want to make a point where even if you had a stand alone program that just gave 100 percent, again 100 percent boatload, nothing but boat load — well, there would still be a problem.
JUSTICE KAGAN: ….just a stand alone program, a boatload of money, no extraneous conditions, no matching funds, is coercive?
MR. CLEMENT: It is…. And the very big condition is that the States in order to get that new money, they would have to agree not only to the new conditions but the government here is — the Congress is leveraging their entire prior participation in the program….
JUSTICE KAGAN: But, Mr. Clement — Mr. Clement, how can that possibly be. When a taxpayer pays taxes to the Federal government, the person is acting as a citizen of the United States. When a taxpayer pays taxes to New York, a person is acting as a citizen of New York. And New York could no more tell the Federal government what to do with the Federal government's money than the Federal government can tell New York what to do with the moneys that New York is collecting.
MR. CLEMENT: Right…. But we all know that in the real world…the Federal government continues to increase taxes that decreases the ability of the States to tax their own citizenry and it's a real tradeoff….
JUSTICE SOTOMAYOR: Are you suggesting that at a certain point the States would have a claim against the Federal government raising their taxes because somehow the States will feel coerced to lower their tax rate?
MR. CLEMENT: No, Justice Sotomayor, I'm not. What I'm suggesting is that it's not simply the case that you can say, well, it's free money, so we don't even have to ask whether the program's coercive.
JUSTICE SOTOMAYOR: Now, counsel, [at] what percentage does it become coercive? Meaning, as I look at the figures…there are some states for whom the percentage of Medicaid funding to their budget is close to 40 percent, but there are others that are less than 10 percent.
....And you say, across the board this is coercive because no state, even at 10 percent, can give it up. What's the percentage of big gift that the federal government can give? Because what you're saying to me is, for a bankrupt state, there's no gift the federal government could give them ever, because it can only give them money without conditions….No matter how poorly the state is run, no matter how much the federal government doesn't want to subsidize abortions or doesn't want to subsidize some other state obligation, the federal government can't give them 100 percent of their needs.
MR. CLEMENT: [in his closing summary] It's really hard to understand tying the preexisting participation in the program as anything other than coercive. The Solicitor General makes a lot of the fact that there are optional benefits under this program. Well, guess what? After the Medicaid expansion there will be a lot less opportunity for the States to exercise those options, because one of the things that the expansion does — precisely because the expansion is designed to convert Medicaid into a program that satisfies the requirement of the minimum essential cover of the individual mandate, things that used to be voluntary will no longer be voluntary….
JUSTICE GINSBURG: Mr. Clement, may I ask one question about the bottom line in this case? It sounds to me like everything you said would be to the effect of, if Congress continued to do things on a voluntary basis, so we are getting these new eligibles, and say States, you can have it or not, you can preserve the program as it existed before, you can opt into this.
But you are not asking the Court as relief to say, well, that's how we cure the constitutional infirmity; we say this has to be on a voluntary basis. Instead, you are arguing that this whole Medicaid addition, that the whole expansion has to be nullified; and moreover, the entire health care act. Instead of having the easy repair, you say that if we accept your position, everything falls.
MR. CLEMENT: Well, Justice Ginsburg, if we can start with the common ground that there is a need for repair because there is a coercion doctrine and this statute is coercion, then we are into the question of remedy. And we do think, we do take the position that you describe in the remedy, but we would be certainly happy if we got something here, and we got a recognition that the coercion doctrine exists; this is coercive; and we get the remedy that you suggest in the alternative.
Theologian Paul Tillich’s students began to realize decades ago that “to caste out demons you had to call them by name.”
You would think that a country with the resources and wealth of the United States would have a system that provides health care for all its citizens. Some say that "Obamacare" is coercive and thus unconstitutional. Yes, and so are federal and state income taxes! We have to pay that money but we have no say how it is used. Obamacare gives the citizens some control over their own money. No wonder so many politicians oppose it!
ReplyDeleteDanielito: The local stakes are high for politicians. They may receive financial support from the for-profit health care industry. This might dry-up, or more likely would be diminished under the new law. The private insurance companies--Medicare Advantage is an example--costs more than medicare itself because the insurance company takes a cut and, in fact, often decreases benefits ever so slightly so no one will notice.
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