Private: Pushing Back Against the Wobbly, But Effective Health Care Law Scare Tactics

by Jeremy Leaming

Someday soon, perhaps not soon enough, the fear mongering over the landmark health care reform law, the Affordable Care Act, will be relegated to the dustbins of history.

The scare tactics we’ve lived with for what feels like a decade – the ACA’s minimum coverage provision, requiring Americans who can afford to do so to start paying for a minimum amount of health care coverage in 2014 is an unprecedented expansion of congressional power and a dire threat to liberty as we know it – are getting even louder as oral argument in the case approaches.

The usual suspects, Fox News and rightwing radio host Rush Limbaugh have been the ringleaders of sloppy reasoning and fear mongering, as Media Matters’ David Lyle notes in cogent fashion.

Lyle’s piece documents the shrill arguments – you’ve heard them – if Congress can force us to purchase a minimum amount of health care coverage, then surely it'll pass laws soon to force us to purchase gym memberships, organic foods, and American automobiles.

But Lyle notes this “slippery slope argument turns out, however, to be too slippery by half, and it gets both the Constitution and the facts of the health care marketplace wrong.”

On a Feb. broadcast, Limbaugh suggested once people are required to purchase a minimum amount of health care coverage, then what can stop the government from “making us buy a stupid electric car.” Lyle cites a slew of other examples peddling the slippery slope scare tactic.

But Lyle notes, what others have before “legal and health policy experts have explained, contrary to the right-wing’s ‘broccoli mandate’ talking point, the Affordable Care Act appropriately addresses failures in the health insurance market using the broad powers the Constitution gives Congress to regulate the national economy, and does not lead to the absurd results opponents have imagined.”

As noted often on this blog, the Supreme Court long ago concluded that Congress’s power to tax and spend, and to regulate commerce are broad powers.

The national health care market accounts for 17 percent of the U.S. economy. And it crosses state borders from coast to coast. Humans do not know when they will need medical attention, but it is a near certainty that they will. Those who do not have health care insurance and fall ill will not be turned away at emergency rooms. They will be treated, pursuant to federal law, and the costs are shifted to those who do pay for health care insurance. A major intent of Congress was to address a health care market that has for too long shut out tens of millions of people because of skyrocketing premiums and insurance companies who discriminate against people with pre-existing conditions.

The minimum coverage provision, according to the CBO and many others, is the most effective way to reform the system. Without that provision, people will put off buying insurance and continue shifting to costs to the insured. And Congress's broad constitutional powers permit it to address national concerns, such as the massive health care market. Those powers, moreover, are supported by Supreme Court precedent. The opponents of the health care surely know this. So in the realm of public opinion, entertainers like Limbaugh rely on scare tactics.

As Lyle notes, former U.S. Solicitor General Walter Dellinger, in testimony before Congress, said, “Slippery slope arguments are themselves often slippery. If it is within the scope of regulating commerce to set a minimum wage, one might argue, then Congress could set the minimum wage at $5000 an hour. Would that force us to conclude that Congress therefore cannot set any minimum wage? Were Congress to legislate the extreme hypotheticals envisioned by those bringing these challenges, there will be ample constitutional doctrines available for the judiciary to use for the imposition of limits.”

In a piece for The New York Times, Linda Greenhouse, an ACS Board member and winner of the Pulitzer Prize, examines the arguments against the minimum coverage provision that have been laid out in briefs before the Supreme Court. Those arguments, she concludes, are about as lame as those pushed by Limbaugh and Fox News.

After “reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief [that the minimum coverage provision is unconstitutional] is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance – specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause – is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.”

Constitutional Interpretation, Executive Power, Supreme Court