As Supreme Court weighs Obamacare, a host of concerns [The Buffalo News, N.Y.]

March 26--People without health insurance eat up billions of dollars of the American public's money every year, and the rest of us will continue to pay -- unless the U.S. Supreme Court upholds the Obama health care law.

That's what one side says.

The other side says that, at least in theory, the government will be able to force you to eat broccoli -- unless the high court overturns the health care law.

Those two divergent opinions only hint at what's at stake this week as the nation's top court considers a landmark set of cases that will not only reshape health care in America, but also the very size and scope of the U.S. government.

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Live video chat: Join Independent Health President and CEO Dr. Michael Cropp, who wrote this linked piece in favor of the Affordable Care Act, at 11 a.m. today on BuffaloNews.com.

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In six hours of arguments from today through Wednesday, the justices will consider the constitutionality of the Affordable Care Act, the controversial 2-year-old law that requires every American to have health insurance starting Jan. 1, 2014.

When the justices decide -- probably by July -- whether that mandate will stand, they could also rule on much more.

Federal regulations on everything from economics to the environment could be affected.

So could highway and education funding and practically every other program where Uncle Sam shifts money to the states.

Add it all up, and many legal and health care experts say this could be the most important set of cases the Supreme Court has faced in decades.

"It's historic," said Joe McDonald, president and CEO of Catholic Health System of Buffalo.

The people at the center of these cases arrive in emergency rooms every day. Sick or injured and unable to pay for care, many end up wards of the health care system, which pays for their treatment with higher costs for the rest of us.

Some 48.2 million people in America don't have health insurance, the latest census figures show.

The Obama administration says health care for the uninsured cost $116 billion in 2008. Of that, about $73 billion took the form of unpaid bills that health care institutions, public and private, had to swallow.

That's a burden to society that averaged out to about $242 per person that year.

Policy experts have worried about that burden for years, and for good reason. Because the uninsured often use emergency rooms in lieu of primary care physicians, they often get treatment later than they should at a place that's far more costly than a doctor's office.

To fix that problem, the conservative Heritage Foundation in 1989 suggested forcing everybody to buy health insurance.

Many Democrats, favoring a more government-centric health system, resisted that idea for years. But by President Obama's election in 2008, Democrats had begun to argue that health care reform built around an individual mandate made a lot of sense.

"The fact of the matter is the people who don't get health insurance today get health care. And guess what? We're all paying for it," said Rep. Brian Higgins, D-Buffalo. "So why not get them into the risk pool and create a system that's more rational than the one we have?"

But when Obama proposed an individual mandate, Republicans rebelled -- and so have the American people.

The Kaiser Family Foundation found this month that 51 percent of those surveyed want the high court to overturn the individual mandate. Only 28 percent support it.

Critics of the individual mandate say it's un-American, because it forces many Americans to do something they would rather not do.

What's more, conservatives say, it could be just the beginning.

"Let's say that the government can mandate that you buy health insurance," said Lawrence Southwick, a retired economics professor at the University at Buffalo who has joined other conservative economists in filing briefs urging the bill be overturned. "When, then, can't you mandate that everybody buy a Chevy Volt?"

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Obamacare and the high court

A majority of the public wants the law overturned ...

--51 percent say the law is unconstitutional

--28 percent say the law is constitutional

--21 percent say they don't know/didn't answer

... but the experts don't think it will be

--85 percent say the law will be upheld

--15 percent say the law will be overturned

Sources: Kaiser Family Foundation Health Tracking Poll conducted Feb. 25-March 5; American Bar Association survey of academics, lawyers and journalists who regularly follow or comment on the Supreme Court.

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The Commerce Clause

That may sound like a stretch -- but some say it's not.

U.S. District Court Judge Carl Vinson of Florida said in his ruling in the case that if the government can cite the Constitution's Commerce Clause to require you to buy health insurance, there's no reason Uncle Same can't make you eat broccoli.

The scope of the Commerce Clause, which gives the federal government the right to regulate interstate commerce, is the central issue before the court.

The high court has ruled since the 1930s that the Commerce Clause gives the government broad power to control even personal economic matters.

In 1942, the court cited the Commerce Clause in upholding a case against a farmer who grew more wheat than federal quotas allowed, even though he grew that wheat for his own use.

And in 2005, the court -- in an opinion written by conservative Justice Antonin Scalia -- used the Commerce Clause to uphold a law that prohibits people from growing marijuana for their own medicinal purposes.

In light of that, backers of the individual mandate say it's clear the U.S. government can make you buy health insurance, because the $116 billion the uninsured spend on health care involves interstate commerce.

The Affordable Care Act "takes a small step" in expanding the scope of the Commerce Clause, said Lisa McDougall, a health care lawyer at Phillips Lytle LLC in Buffalo.

"But it's not a big step, and it's a plausible one," she said.

Conservatives agree the government can regulate interstate commerce -- but not economic inactivity such as the decision to forego health insurance.

"Never have courts had to consider such a breathtaking assertion of raw power under the guise of regulating commerce," Ilya Shapiro, of the libertarian Cato Institute, wrote in an American Bar Association preview of the health care cases.

Still, 85 percent of the legal experts the ABA surveyed said said they expect the court to uphold the individual mandate.

Many lawyers say the justices could be worried overturning that mandate could throw countless laws into question.

After all, environmental regulations, labor laws and even the Civil Rights Act are built, in part, on the constitutional bulwark of the Commerce Clause.

If the high court overturns the individual mandate, "it would certainly open a new line of attack to all economic legislation," said William P. Keefer, another health care lawyer at Phillips Lytle. "It would have a very big impact in the way the country does business."

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The Supreme Court and Obamacare

The questions before the court

10-11:30 a.m. today: Does federal law bar the court from ruling on Obamacare at this time?

10 a.m.-noon Tuesday: Is it constitutional for the government to require individuals to buy health insurance?

10-11:30 a.m. Wednesday: If the individual mandate is unconstitutional, what about the rest of the bill?

1-2 p.m. Wednesday: Is the law's expansion of Medicaid unconstitutional?

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The heart of the law

Yet that's just one of the four big issues the court faces.

If the court rules the individual mandate unconstitutional, it will have to decide whether the rest of the bill should stand.

The law itself doesn't say, and lower courts are divided.

But one thing is clear: There would be huge ramifications for health care either way.

If the bill is struck down in total, its popular features -- some of which are already in effect -- would disappear.

Insurers would no longer be required to allow parents to keep children on their health policies until age 26.

Health insurance companies could resume refusing coverage to people with pre-existing medical conditions.

"If the law is overturned in full, it's back to the drawing board in so many ways," said Keefer, who predicted that Congress would find it difficult to agree on new health care legislation.

Then again, if the high court strikes down the individual mandate but allows the rest of the bill to take effect, Congress will face a huge dilemma.

"The individual mandate is the linchpin of the legislation," said Dr. Mark J. Lema, president of the Medical Society of Erie County. "It's what allows there to be an even playing field."

In theory, the individual mandate would force millions of healthy younger people onto the insurance rolls, where they would subsidize the health care of people who are older and more likely to get sick.

That's why the law set up a complex set of structures to goad people into getting health care, ranging from a Medicaid expansion for the near-poor to a penalty for those who refuse to get insurance.

Experts on both sides of the health care argument just don't understand how all those efforts can stand without the individual mandate.

The law can't operate under the legislative bargain it passed "once the heart of that bargain has been ripped out," plaintiffs wrote in asking the court to overturn the law in full.

'Federalism is at stake'

If the image of a heartless health care bill isn't shocking enough, imagine the end of federal highway money, education funding and the state-federal Medicaid program for the poor.

All of that, potentially, is at stake in the part of the health care cases involving the law's Medicaid expansion.

Florida and several other states say that expansion, which brings the near-poor onto the Medicaid rolls, is unconstitutionally coercive.

"States that do not accept the substantial expansion of eligibility, elimination of flexibility and other reforms will lose all federal Medicaid funds," Southwick and his fellow conservative economists said in their brief to the high court urging the bill be overturned.

Other states -- including New York -- counter by saying they see no coercion in a federal program expansion that sends the states much more money in return for expanding Medicaid.

The people added to the Medicaid rolls "will come at little or no cost to the states," New York and 10 other states said in their brief.

That being the case, most legal experts think it's unlikely the high court will overturn the Medicaid expansion.

"No federal court has ever found a federal spending program to be unconstitutionally coercive," said James A. Gardner, vice dean of the law school at the University at Buffalo. "It's a very difficult climb for the challengers in this case."

After all, federal highway and education funding has gone to the states for years with all sorts of strings attached, and the U.S. has been putting conditions on state Medicaid funding for 45 years.

So if the high court overturns the law's Medicaid expansion, all those state-federal programs and others would be thrown into question.

For that reason, this week's cases are about much more than health care, said Rep. Tom Reed, R-Corning.

"The whole concept of federalism is at stake," Reed said.

A way out of ruling

If all that seems like too much for nine justices to bite off and chew, they need not worry.

They have an escape hatch.

The court also must decide if, under an arcane tax law dating from the 19th century, it's just too early to decide these cases.

That law prohibits lawsuits against taxes before they are collected. So if the penalty that the uninsured will have to pay starting in 2014 is deemed a tax, the high court can kick all these other health care issues down the road for a few years.

Neither the government nor the law's critics want that to happen, but it might.

"If they decide they don't want to decide, that's a way out," Gardner said. "It's always a good strategy to offer a court a back door."

For the American people, though, there is no back door.

Health care experts generally agree the system has to be reformed. The nation can't keep devoting 17 percent of its economy to health care -- compared to 9 percent in other first-world nations -- while leaving tens of millions of people without insurance.

Dr. Michael W. Cropp, president and CEO of Independent Health, said he worries that if the health care law is struck down, health care will get more expensive and fewer employers will offer it.

"You're going to see access to health care go down if this thing gets overturned," Cropp said.

McDonald, of Catholic Health Systems, agreed, adding: "Great health care you can't access isn't worth a damn."

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