Wonky justice: the dubious policy assumptions behind ObamaCare's legal defense.

• Author: Suderman, Peter
• Position: Patient Protection and Affordable Care Act

IF NOT FOR ALL the marble columns and black robes, you could have easily mistaken the Supreme Court arguments over the constitutionality of the Patient Protection and Affordable Care Act--a.k.a. ObamaCare--for yet another D.C. panel discussion of American health policy. While Solicitor General Donald Verrilli was defending the law's mandate to purchase health insurance, Justice Ruth Bader Ginsburg volunteered the factoid that hospital costs in Maryland had jumped 7 percent as a result of "uncompensated care" for uninsured patients who fail to pay their medical bills. Justice Stephen Breyer reeled off a string of semi-coherent statistics about the uninsured: "We have a group of 40 million, and 57 percent of those people visit emergency care or other care, which we are paying for," Breyer said. "And 22 percent of those pay more than S100,000 for that "Justice Sonia Sotomayor, in a brief flight of technocratic fancy, wondered aloud whether the same type of tax credits already available for buying solar panels and fuel-efficient cars couldn't also be used to encourage the purchase of health insurance.

In treating the legal question as a policy issue, the justices were following the government's lead. Verrilli, who defended both the individual mandate and ObamaCare's expansion of Medicaid, did not open his argument with an appeal to constitutional principle or legal precedent. Instead he explained the problem that the law's many interlocking provisions were intended to fix, declaring that "for more than 4o million Americans who do not have access to health insurance either through their employer or through government programs such as Medicare or Medicaid, the system does not work." Government briefs in support of the law were similarly heavy on policy detail and legislative history, offering multi-decade overviews of previous efforts to overhaul federal health policy and describing the existing patchwork of programs, subsidies, and state and federal regulation.

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ObamaCare's legal defense relies as much on policy arguments--about the nature of uncompensated medical care, the role of Medicaid, and the interaction of the law's various provisions-as it does on constitutional reasoning. But the policy case is just as dubious as the constitutional one.

The Myth of the $1,000 Premium Hike

Justice Ginsburg's reference to uncompensated care came from a White House talking point. To justify ObamaCare's health insurance mandate under the Constitution's Commerce Clause, which allows Congress to regulate commerce among the states, the administration argued that the existence of tens of millions of uninsured individuals poses a national problem: The uninsured don't pay for their care, shifting the costs to the rest of us.

According to the government's brief, the...