People will talk non-stop about health care reform for three months. That’s how long the Supreme Court will take to decide the two cases that came before it in oral argument. But larger policy problems created the health care problem to begin with. That is what the country should talk about.

What next at the Supreme Court

The Supreme Court never decides anything with one vote. They don’t even decide cases with one deliberative session, as juries do. Instead, the Court will take a preliminary vote this morning at its regular Friday morning meeting. Then the senior Justice on each side will assign one of the Justices on his side to write the opinion for that side. (The Chief Justice is senior to all, and after that, a Justice who has served longer is senior.) Then the Justices circulate the opinions all around. Then any other Justice may join one or the other opinion, or write his own concurring opinion while still voting for one chief opinion or another.

Then the opinion that gets the most votes will be the majority opinion, and the other will be the dissenting opinion. The last vote between the two opinions, decides the case.

The Supreme Court can vary the theme in at least two ways. First, one Justice could find himself all alone at first, and write an opinion that could still win, if it persuades four of his colleagues. Or, all the Justices could agree from the beginning. In that case, the Chief Justice assigns one of his associates to write one opinion. If that opinion still persuades everyone, then the Court calls this a per curiam opinion.

So, as in politics, the only vote that counts is the last vote. (Judge Andrew Napolitano, formerly of the Superior Court of New Jersey, has explained this process in the best detail.)

So why do so many assume that the Court will invalidate the health care reform bill? Because the Solicitor General embarrassed himself so thoroughly that one of the Justices, who immediately preceded him in the office he holds, felt that she had to help him out from the bench. Many observers say that Donald Verrilli held the least enviable spot where any lawyer can stand: of a good lawyer pleading a bad case. Furthermore, Justice Antonin Scalia told everyone present that the government, and all its “friends of the Court,” had exasperated the Court by never reading the health care reform bill before they wrote their briefs or came to argue their cases. Scalia asked scathingly whether the lawyers expected the Justices, or their clerks, to read a 2,700-page law if the lawyers never troubled themselves to read it.

That has led many to believe that the Court will throw out the entire bill and ask Congress to sort it out. (James Carville bitterly said that “Republicans will own the health care system for the foreseeable future” if the Court votes 5-4 against the health care reform bill.) Congress will never pass anything in health care reform before this fall’s election. (Even if it were so inclined, the Supreme Court will not even tell it to act until the end of June!) So any health care reform will have to come from the 113^th Congress and possibly a new President.

That is why Investors Business Daily said this morning that the Republican Party has its best opportunity to propound its own health care reform plan.

Health care reform not working

The Star of Life, featuring the Rod of Asclepius, the true symbol of medicine. Photo: US Department of Transportation

IBD also said that the health care reform bill is not working. Health insurance premiums were trending lower before 2010. They have “shot up” since the health care reform bill passed.

The cost of an average family premium shot up 9.5% in 2011 — the highest rate in seven years and three times the rate of overall inflation.

Furthermore, not only did the health care reform bill do nothing to stop prices from rising; it fueled the rise. Any honest student of economics would have said this would happen ahead of time. If you give people free stuff, they want more of it. And because nothing is free of charge, someone else has to pay for it. And when everyone buys more of a good or service, the price goes up.

IBD also cited CBO and other reports saying that 27 million people will still not have insurance even with the health care reform law. Part of the problem: employers will decide not to give their employees any health insurance. The fine for not giving health insurance is less than the premium per person for that insurance. A law that a person does not even find worth obeying, invites people to scoff at it. And that Congress set the law up that way, shows that Congress never intended that people “keep [their] plan,” as the man now holding office as President said they could. Instead, they intended that everyone buy insurance on the new exchanges that the law ordered each State to set up. (In New Jersey, Governor Chris Christie has stopped plans to set up any such exchange. He believes, as native son Andrew Napolitano does, that the Supreme Court will tell him that he does not have to.)

Liberals like Eugene Robinson are quick to threaten that which they have always wanted: a single-payer system. Canada has a single-payer system, and that is why hospitals along the northern border see so many Canadian patients, and other Canadians die on waiting lists. (Liberals, don’t even think to contradict this! Your correspondent once argued this point with a Dutch fellow resident in pathology at Monmouth Medical Center, Long Branch, NJ, in 1992. She said that an ethical health care system would not even let a patient “buy his way to the head of the line.” Such a patient, she said, should live or die on medical merit alone. And that would mean that a patient 70 years of age or older did not deserve to have heart-and-vessel surgeons bypass his coronaries, because he had already lived a full life! Behold the rationale for “death panels,” out of the mouth of a postgraduate trainee.)

IBD has its own ideas for health care reform:

• Today, employers can deduct the premiums for group health insurance from their income. Patients who buy their own insurance may not. IBD would offer patients the same tax treatment, but won’t say how.
• Have Congress allow patients to buy health insurance across State lines. That would be a valid way for Congress “to regulate commerce among the several States.”
• Let small employer groups or other groups band together to win “economies of scale.”
• Make “Medical Savings Accounts” (which the tax code treats like Individual Retirement Accounts while letting people withdraw from them for more than a catastrophic illness only) available to all.
• Reform the tort laws that today encourage lawyers to sue for “medical malpractice” that might not be that. But that is a State matter, not a federal matter.

Even IBD misses the point. Those measures treat the symptoms, not the problem behind the problem.

Health care reform v. tax and government reform

The two worst problems that IBD sought to discuss are tax problems. They are:

1. The tax treatment of health insurance that an employer buys, and that a person buys for himself and his household, and
2. Granting a tax advantage to people to save for big hospital or emergency-center bills.

Thus health care reform cannot happen without tax and government reform. Anyone who wants to repair this broken system must do both. If government were not so big, then it could work with far less revenue. Tax reform would then be much easier with government reform. Arguably tax reform cannot happen without government reform.

The Constitution gives no inherent authority for any government departments beyond the Departments of State, Treasury, Defense, and Justice, plus public-private partnerships for mail carrying and road building. (The “post offices and post roads” clause grants this authority.) The Commerce Department would not have been necessary had Congress stayed within the original meaning of “regulat[ing] commerce among the several States.” Other departments go far beyond the Article I, Section 8 clauses, and even beyond various Constitutional amendments that read in part,

The Congress shall have the power to lay and collect taxes on incomes…

or

Congress shall have the power to enforce this article through appropriate legislation.

Neither does the Constitution say that Congress shall have the power to set up free hospitals, free clinics, or free anything else of that kind.

With that kind of drastic government reform, tax reform would be easy. A tax on spending on new goods, like the FairTax, would automatically give savings an advantage for any purpose. Furthermore, with this one simple reform, the tax treatment of any kind of health insurance would be the same.

Americans for Fair Taxation have always guessed that the FairTax would need a rate of 23 percent, and an “advance refund” based on family size, to give the government the revenues it needs today. Obviously a government several times smaller than the one we have today would need less revenue.

IBD said that the Republican Party has an opportunity to show what it can do for health care reform. They can’t seem to imagine the opportunity that the American people really have: to change the debate, not only on health care reform, but on what kind of government Americans need, and how much it costs.

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