This book review was first published in the Daily Journal on November 9, 2012.
With 225 years separating the ratification of the Constitution of the United States and the landmark United States Supreme Court decision National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), the Constitutional impact of Chief Justice John Robert’s majority opinion will resonate down the labyrinth of Federalism for decades to come.
As it relates to the 2010 Patient Protection and Affordable Care Act and Health Care and Education Reconciliation Act, the holding is clear and concise, even as the legacy of the Affordable Care Act has yet to be determined. Few scholars will disagree on the meaning of the Court’s ruling – that the Affordable Care Act’s individual mandate is constitutional and the Medicaid expansion provisions will survive – although the way in which the Court reached its conclusion remains the subject of heated debate.
Einer Elhauge’s Obamacare on Trial approaches the Supreme Court decision much like the Phythia at Delphi, although sadly this latest collection of high profile, widely published essays conclude where the real story begins. The task itself is in many ways thankless, as the fluidity of the modern health care structure makes the art of prediction all but impossible. Just as no matter how hard we try to project the intent of the framers into our twenty-first century economy, it is unlikely that Washington, Madison or Hamilton could have predicted companies like Facebook, Amazon or Apple, today’s health care experts are in no position to act as oracles until President Obama’s fledgling program has had a chance to mature.
While theoretical discussions about the Affordable Care Act are fascinating in their own right, Professor Elhauge and his fellow health care scholars should always be mindful of the market that benefits most from such intellectual calisthenics. Let’s face it, most Americans simply do not understand why Chief Justice Roberts held that the individual mandate is not a tax under the Anti-Injunction Act but is instead a tax under the Constitution, why four of the Justices on the bench referred to such logic as “verbal wizardry,” and exactly when they will need to pay $695 for not having health insurance. Such a collection as his must target those who are both mindful of and intrigued by the myriad changes to the very structure of our nation’s health care system brought about by a host of new programs and regulations.
While this most recent collection may not cater to the correct audience, the author does ask the appropriate questions. In discussing the individual mandate, Professor Elhauge uses logic and a Nobel laureate to convey the fact that its inherent flaw lies not in its existence, but rather its destined target. “In short, the Obamacare mandate targets expensive treatments that would likely be unaffordable without insurance,” Elhauge explains. “The real debate is (or should be) over whether the mandate to pay for these treatments should be shifted from society at large to those who receive them.”
Health care in America is anything but static, and the solutions to its problems will not come from Supreme Court opinions or academic collections. The answers will instead come from the very same trenches where these crises originated. And yet, like those hospitals that make up its backbone, the health care market is only ever as sound as the climate in which it finds itself. With all of the technological advances to be found in the twenty first century, America’s oldest hospital, Bellevue Hospital in New York City, offered much the same service in October 2012 when Hurricane Sandy forced the evacuation of the hospital’s 700 patients as it did in 1736 when the New York City Almshouse designated six bedrooms as Bellevue’s first “ward.” The ways in which we weather fluctuations in our health care climate are the true tests of any health care system in modern society, and often success is a result of the very relationships Professor Elhauge’s Nobel laureate did not consider in his economic analysis.