Justices wouldn’t get past mom’s BS detector

United States Supreme Court

By Eric Mink, Special to the Jewish Light

My mom, Ida, died 40 years ago last month, just short of her 50th birthday. She was funny, loving, assertive, fiercely protective and one of the smartest people on Earth. She also possessed a BS detector of dazzling accuracy that intimidated my siblings and me and worked every bit as well on things she saw and read as it did on us.

I used to believe she had developed this ability through force of intellect, instinct, experience and personality, which is probably true. But I also think it just might be some damn supernatural thing moms have.

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I can only speculate, but the needle on Ida’s BS meter might have pinned at maximum if she had had to endure last week’s six hours of oral arguments at the United States Supreme Court on the Patient Protection and Affordable Care Act (ACA) of 2010.

She had no special knowledge of, or training in, constitutional law and legal precedents, but she had, alas, a wealth of personal experience with the inordinately complex intertwined systems of American healthcare and health insurance. What she heard, particularly from U.S. Justice Antonin Scalia, would have sounded jarringly out of synch.

Even as Ida’s own health failed bewilderingly during the last two years of her life, she was steering the medical care and managing the associated financial challenges of her mother and her mother-in-law, both in their 80s. 

My grandmothers’ health had diminished and their independence had vanished with awful speed. There were hospitalizations and eventually full-time nursing home care for both that no family we knew, certainly not ours, could afford to pay on its own.

Family finances were part of Ida’s portfolio in the marital partnership, and while my late father, Joe, helped as much as he could, dealing with the medical bills was essentially her responsibility. She learned and worked the system with great ingenuity and diligence, although how she handled the emotional anguish remains a mystery to me.

Ida’s mom died two months before she did; her mother-in-law, a month after. Cancer, stroke and heart disease wiped out the matriarchy of our family, a mother and two grandmothers, in less than four months. No one could have dreamed such a thing, much less planned for its financial consequences.

The cost of their care was crushingly high, even by 1972 standards; I saw the bills. The family survived financially only because the business my dad had founded and built was successful and because of health insurance—some private, some public. 

I think Ida’s BS meter would have been fried by the dodgy analogies and imaginary parade of horribles from the Supreme Court conservatives last week.

Hearing Scalia, by all accounts a brilliant man, play to the pit with the old canard about health insurance and broccoli was especially disappointing. The premise is meant to seem terrifying: If the government can require people to buy health insurance or pay a modest tax penalty, which a provision of the ACA does in some situations, what’s to stop it from requiring us to buy broccoli?

As Scalia well knows, many things stand in the way of the government doing either. It’s just that the Constitution and the precedents of previous Supreme Court decisions, some of which he wrote, are not among them. 

The Commerce Clause in Section 8 of Article 1 of the Constitution grants Congress the enumerated power to pass laws regulating economic activity that has a substantial impact on interstate commerce. The healthcare and insurance system, which annually accounts for more than 17 percent of all the economic activity in the United States, involves such activity. So do the cultivation, harvesting, processing, transportation and sale of broccoli.

As long as provisions requiring insurance purchases (or broccoli purchases) are a reasonable part of regulating these interstate economic activities, they’re constitutional. 

But being constitutional and becoming a law are two very different things. Consider a possible broccoli mandate:

First, the broccoli lobby would have to contribute enough money to enough congressmen to get legislation written, introduced, sponsored and on the House calendar for consideration. Then there’d be staff work, subcommittee meetings, committee hearings, fundraisers for party leaders and PR campaigns extolling broccoli as a job creator and exposing broccoli haters as un-American. For the floor vote, more than 50 percent of the members of the House of Representatives — most from non-broccoli-growing districts — would have to be persuaded to vote for the bill.

Then the bill would go to the Senate for the same drill: sponsors, calendar, subcommittees, committees, fundraisers, PR, etc. On the Senate floor, it would need support from 60 percent of the members to forestall anti-broccoli filibusters.

Finally, a president of the United States would have to sign the bill to make it law. (President George H.W. Bush, you may recall, hated broccoli.)

In the real world, it took 100 years for the ACA to become law. President Theodore Roosevelt wanted national health insurance in 1912; he didn’t get it. President Franklin Roosevelt wanted it in the 1930s; he created Social Security instead. Maybe it was easier. President Harry Truman wanted mandatory health insurance in 1945; he couldn’t get it.

President Lyndon Johnson got a start on national health insurance with the enactment of Medicare for seniors and Medicaid for the poor in 1965. President Richard Nixon tried to extend Johnson’s achievements but couldn’t pull it off. President Bill Clinton tried and failed.

President Barack Obama almost failed, too. The ACA seemed on track to become law after painstaking work during Obama’s first year in office. Then a Republican won a special Massachusetts election in January 2010 for an open Senate seat, upsetting the balance of power. Only intense congressional negotiations and furious political maneuvering saved the legislation, which Obama signed into law in March of that year.

And as soon as control of the House shifted to Republicans after the midterm elections of 2010, the new House majority passed a bill to repeal the ACA, although it died in the Senate.

Most people who don’t have health insurance aren’t making an ideological statement; they just can’t afford it. The ACA provides several ways to help them do so, and the minimum coverage mandate is part of that.

During last week’s oral arguments, it seemed to dawn on Justice Anthony Kennedy why the mandate is necessary. People who don’t have insurance are still participating in the insurance market, he said, “in the sense that they are creating a risk that the market must account for.” Exactly.

If opponents of national health insurance want to get rid of the ACA, they should elect a president and majorities to the House and Senate who share their views. It’s not the Supreme Court’s job to do through wrong-headed judicial declaration what the opponents have not yet been able to do through politics.

And the conservative justices shouldn’t be blowing smoke to hide their political inclinations. They wouldn’t have fooled my mom for a second.