En el NYRB, el reconocido filósofo del Derecho,
Ronald Dworkin, comenta las razones por las que la impugnación de la constitucionalidad de la reforma de salud es errónea. Dworkin comenta críticamente, entre otras cosas, los argumentos presentados por los demandantes republicanos y las premisas que parecen sostener las preguntas que hicieron la mayoría de los jueces del Tribunal Supremo de EEUU (a los que llama "ultra-conservadores") en las argumentaciones orales. Reproduzco su columna abajo. Pueden accederla
aquí. Culmina Dworkin con lo siguiente:
"Our recent history is marred by a number of very badly reasoned
Supreme Court decisions that, deliberately or not, had a distinct
partisan flavor: Citizens United, for example, which, most
critics agree, has already had a profound and destructive impact on our
democratic process. Those decisions soiled the Court’s reputation and
harmed the nation. We must hope, though perhaps against the evidence,
that the Court will not now add to that unfortunate list."
***
The Supreme Court’s hearings in the health care case, Department of Health and Human Services v. Florida,
over a nearly unprecedented three days of oral argument, generated all
the attention, passion, theater, and constant media and editorial
coverage of a national election or a Super Bowl. Nothing in our history
has more dramatically illustrated the unique importance of courtroom
drama in American government and politics as well as entertainment.
The plaintiffs have asked the Court to declare the Affordable Care
Act (the Act) unconstitutional. The political and social stakes are
enormous, but the legal issues, most analysts think, are not really
controversial: the Constitution’s text, the Supreme Court’s own
precedents, and basic constitutional principle seem obviously to require
upholding the act. Many legal scholars predicted a 7-2 decision
rejecting the challenge. But they apparently misjudged the dedication of
the ultra conservative justices, whose questions in the oral argument
have now convinced most commentators that on the contrary, in spite of
text, precedent and principle, the Court will declare the Act
unconstitutional in June, by a 5-4 vote.
That prediction may be too swift. There are reasons at least to hope
that Justice Anthony Kennedy, often the swing vote between liberals and
ultra conservatives, will have sufficient respect for Congressional
authority to save the Act. (I discuss these reasons in an expanded
version of this piece, which will appear in a coming issue of The New York Review.)
The prospect of an overruling is frightening. American health care is
an unjust and expensive shambles; only a comprehensive national program
can even begin to repair it. If the Court does declare the Act
unconstitutional, it will have ruled that Congress lacks the power to
adopt what it thought the most effective, efficient, fair, and
politically viable remedy—not because that national remedy would violate
anybody’s rights, or limit anyone’s liberty in ways a state government
could not, or would be otherwise unfair, but for the sole reason that in
the Court’s opinion the strict and arbitrary language of an antique
Constitution denies our national legislature the power to enact the only
politically possible national program.
It is only a specific provision of the Act that is now under serious
constitutional challenge. The Act provides, among other benefits, health
care insurance for the 40 percent of citizens who now lack it, and it
forbids insurance companies to deny coverage or charge higher premiums
for those who have a preexisting illness or incapability. These
obviously just benefits cannot be provided, however, unless all
citizens—the young and healthy as well as the elderly and already
sick—join the insurance pool. If only those likely to need treatment
seek to join, the insurance companies would need to charge astronomic
premiums that most of them simply could not afford.
The premise of all social insurance plans, including the Social
Security program, is that inescapable risks should be shared across a
political community between those more and those less at risk. The Act
follows this principle; it provides that with few exceptions Americans
who are not insured by their employers or by other government programs
must purchase insurance themselves or, if they do not, pay what the Act
calls a “penalty” on their tax return.
It is this so-called “mandate” that the plaintiffs in this case—26
states with Republican governors, a group of businesses and some private
citizens—challenge as unconstitutional. They say that although the
Constitution gives Congress the power to limit or forbid commercial activity that has a significant impact on the national economy, it denies Congress power to require
commercial activity, like buying health insurance, even when that
activity is crucial to the national economy. That distinction between
negative and positive regulation—between dictating the terms of
insurance and requiring people to buy insurance—is the heart of the
constitutional challenge. It was treated as potentially decisive by all
the conservative justices who spoke: Justice Kennedy, for instance,
asked whether the mandate doesn’t “create” commerce rather than regulate
it. Why is the difference between restricting and requiring activity so
important?
Not because the language or underlying principles of the Constitution
demand that distinction. The Constitution’s architects were guided by a
principle that makes the distinction irrelevant: that Congress should
be assigned only those powers that could not effectively be reserved to
the states. They believed that if the effects of a particular political
decision would be felt only or mainly within a particular state, that
decision should be made by that state because decisions by state
officials would be more sensitive to local needs and local opinion. But
if some matter could only sensibly be settled at the national level,
like decisions about foreign trade or the terms of trade among citizens
of different states, then the principle required that Congress have the
power to decide it. That test can be applied without distinction to both
negative and affirmative regulation.
Why do the conservative justices nevertheless think that distinction
so crucial? They offer only one reason: they say that if Congress can
make people buy insurance then it can make them buy anything it wishes.
Why could Congress not make people buy electric cars to reduce
pollution? Or join health clubs to improve the nation’s health? Or buy
broccoli to keep broccoli prices high? All the conservative justices who
participated in the oral argument pressed these questions. They said
they could not uphold the insurance mandate unless they found what they
called a “limiting” principle and, they suggested, none could be found.
The government’s lawyer, Solicitor General Donald Verrilli, offered
several ways to distinguish health care from electric cars and broccoli.
He said, first, that people do not have to buy cars or broccoli but
almost everyone, eventually, has to receive health care. No one doubts
that Congress could require patients to pay for any medical service they
require through insurance, so that uninsured heart attack victims who
wanted hospital treatment would have to buy insurance in the ambulance,
presumably from paramedics trained also to sell it. Why can’t Congress
avoid that ridiculous prospect by requiring people to have insurance in
advance?
His second argument was even stronger. Every American already has
health insurance; the mandate only requires that he pay for his
insurance rather than free-loading on those who do pay. A federal
statute and several state statutes require hospitals to provide
emergency medical care to people who cannot pay for it, and America’s
traditions of compassion mean that doctors will not let people die in
pain when they can easily save or help them. In practice, this means
that the uninsured will go to costly ER
facilities when they need medical help. Congress found that health care
for uninsured patients cost $43 billion in 2008; these costs were paid,
through higher premiums, by those who do buy insurance.
Congress surely has the power to make people pay for what, out of
human decency, the law and practice provide for them. Since it is
impossible to predict who will suffer a grave accident or fall victim to
a terrible disease, and since almost no one without insurance can pay
for adequate care if he does, the only effective means of making people
bear the actual costs of their own treatment is to require them to buy
insurance in advance.
These are effective replies to the single conservative argument: they
distinguish health care and insurance from broccoli and electric cars,
and so offer a “limiting principle” of the kind the conservative
justices say they want. There is, however, a deeper, more comprehensive
objection to their argument: no limiting principle is either necessary
or desirable. Their argument conflates two questions.
First, what power does any American legislature have to coerce people
to buy what they do not want? Second, if any such coercive power
exists, how is that power to be allocated between the state and national
legislatures? Once we distinguish these questions we see that the
conservatives’ distinction Congress regulating the price and terms of
health insurance and making people buy that insurance is pointless.
The rhetorical force of their examples, about making people buy
electric cars or broccoli, depends on a very popular but confused
assumption: that it would be tyrannical for any government to force its
citizens to buy what they do not want. In fact both national and state
governments steadily coerce people to do just that through taxation:
they make them buy police and fire protection and to pay for foreign
wars whether they want these or not. There is no reason in political
principle why government should not make people pay directly for these
services through insurance rather than indirectly through the mechanics
of taxation: direct payment would be no greater compromise of freedom.
In fact Massachusetts does make people buy health insurance: that
mandate is at the core of that state’s health care program, on which the
national Act was partly based. Almost no one—apart from Michele
Bachmann—has argued that the Massachusetts mandate is unconstitutional.
So we may ask: is there a constitutional limiting principle that
would allow Massachusetts to impose that mandate but prevent it from
requiring its residents to join health clubs or buy broccoli? There are
of course constitutional limits to any power of government. Neither the
indirect mandate of taxation nor any more direct mandate may be
discriminatory or irrational, neither may deny due process, and each
must serve some proper purpose of government. But are there any special
limiting principles that would prohibit a state requiring broccoli
purchase in a rational and fair way?
No. We are protected from silly state mandates not because the
Constitution rules them out but because politics does. No state
legislature would dare to make broccoli purchase compulsory unless, for
some hard-to-imagine reason, this was plainly the only way to avert some
economic catastrophe. The role of democratic politics in protecting
citizens against legislative corruption or stupidity does not depend on
whether the legislature wants to require or forbid economic activity,
however. Voters would be no less outraged by a state legislature’s
decision to ban automobiles altogether than by its decision to make them
buy electric cars.
If we do not need a limiting constitutional principle to stop a state
from outrageous economic legislation, we do not need any such principle
to stop the national Congress, within its proper sphere, either. The
Court can allow Congress, as it allows Massachusetts, to mandate health
insurance without finding a constitutional barrier to a national
compulsory broccoli purchase. Politics supplies the appropriate check in
both cases. So we must turn to the genuinely important question, the
second question I distinguished. What is Congress’s proper sphere of
control in health care matters?
We answer by consulting the principle I described: the principle of
state control over local matters. Neither the Constitution’s language
nor that principle distinguishes between negative and positive
regulation of commerce, between prohibition and mandate. The principle
does require that Congress show that the commerce it seeks to regulate
has a profound impact on the national economy. National regulation of
health care plainly passes that test.
We cannot ignore the political dimension of this case. The Republican
Party and the candidates for its presidential nomination relentlessly
denounce the Act, perhaps largely because it was one of President
Obama’s main domestic achievements during his first term. They hope that
the conservative justices will declare the Act unconstitutional in
June, just as the primary season ends and the national presidential
campaigns get under way; they think that will help them defeat the
President in November. But the Act is plainly constitutional and it will
be shaming if, as so many commentators now expect, those justices do
what Obama’s enemies hope they will.
Our recent history is marred by a number of very badly reasoned
Supreme Court decisions that, deliberately or not, had a distinct
partisan flavor: Citizens United, for example, which, most
critics agree, has already had a profound and destructive impact on our
democratic process. Those decisions soiled the Court’s reputation and
harmed the nation. We must hope, though perhaps against the evidence,
that the Court will not now add to that unfortunate list.
April 2, 2012, 11:25 a.m.
