So a key part of U.S. President Barack Obama’s health “reform” bill was declared “unconstitutional” last week by the right wing federal district court judge Henry E. Hudson in Virginia. In a 42-page opinion, the justice wrote: “Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.”
The extremist Republican right (whose arch-regressive agenda is falsely labeled “conservative”) had a field day. The talk radio and FOX “News” mob was all abuzz. The G.O.P/Tea.O.P, felt emboldened in its campaign to repeal the health law, which it has absurdly denounced as a “socialistic” effort to “pull the plug on grandmother” and advance “socialized medicine” and radical “government takeover of our healthcare”
The ultimate impact of Hudson’s decision is unclear. The health care legislation has already been upheld (declared constitutional) by two other federal district judges and Hudson made no move to block implementation. The case should work its way to the Supreme Court, where I (hardly a legal expert) have no idea what might happen there. A law professor in my current home town says that Hudson egregiously ignored the already established constitutional validity of the widely popular Medicare program. Part A of that that program mandates that working Americans must advance part of their wages and salaries towards covering their hospital bills after they turn 65. If Congress can make citizens buy hospital insurance for their old age, the professor argues, it surely can require them to purchase health insurance in their current, pre-senior
But Hudson’s charge against the legislation is that it unduly mandates the purchase of “a private commodity” and Medicare is a government program, so I have no idea if the professor is right. I’ll leave the finer constitutional points and prognostications to others with more background in the law. What I do feel confident noting and commenting on in this essay is the rich irony of Obama being criticized by the right for trying to push people into the purchase of health insurance as a commodity. American “conservatives” have consistently upheld the commodification of health care over and against progressive efforts to make health care a basic human right beyond the sphere of market logic and the question of how much money one possesses.
And the “deeply conservative” Obama [1A] complied with their wishes throughout a health "reform" process that conciliated Republicans and big business while betraying progressive ideals and constituents. During the 2008 presidential debates, Obama was asked if he thought that health care should be understood as a “human right” or as “a commodity.” His answer was meant to mollify longstanding majority progressive public opinion (and basic moral decency) on the issue. He chose “human right.” Contrary to that choice and to the right’s fantasy of Obama as some sort of left radical, however, President Obama and the Democrats’ health “reform” kept corporate prerogatives and American health care’s commodified status deeply intact. The Obama-Democrats’ health bill left the leading -profit private insurance and drug companies – with their giant and expensive bureaucracies (costing more than $400 billion per year) dedicated to the denial of care and the protection of investor interests – in charge of the health care system. It left most Americans cringingly dependent on their employers and their own declining paychecks and savings for the purchase of purchase health insurance (required by most Americans for the purchase of actual health care) as, well…a commodity. In bold defiance of his own stated health care position as an Illinois state senator in the spring of 2003 2 a position abandoned once Obama determined he had a serious shot at national office), the president refused advocates of actually socialized health insurance –“Improved Medicare for All” on the “Canadian” model – even a tiny seat on the margins of the negotiating table in the health “reform” debate of 2009.
Under the single payer model embraced by serious progressive health reform advocates for many years, health insurance would have been de-commodified. It would have been turned into a human right and the health care system really would have become more truly “government-run.” But, consistent with his former chief-of-staff Rahm Emmanuel’s advice that he “ignore the progressives,” Obama would have nothing to do with single payer – the obvious simple and social-democratic, cost-cutting solution for the nation’s expensive, cumbersome and unequal method of paying for health care. When the newly inaugurated Obama held his initial health care summit early that year, the veteran black congressman and House Judiciary Chairman John Conyers (D-Michigan) – well known as the architect of the U.S. House single payer bill (H.B. 676) – was not even invited. Neither was the leading national single payer advocate Dr. Quentin Young, reputed to be a close friend of Obama’s from Chicago. As president, Obama’s golf buddies have included top insurance, drug, and health care executives, who lobbied the president and his advisors behind the scenes in defiance of candidate Obama’s promises to put all health care negotiations “on C-Span.”
The president’s White House health care summit – before Congress did anything – began and ended with the insurance industry speaking. It was obvious where they were going. Not content merely to betray left progressives and majority progressive citizen opinion on single-payer, indeed, the Obama team played a sick game with vague and watered down policy promises for something called a “public option” – a mythical government insurance option for those who could not obtain insurance in the private system. By mid-November of 2009, Bill Cinton’s onetime labor secretary Robert Reich accurately noted that “It's a token public option, an ersatz public option, a fleeting gesture toward the idea of a public option, so small and desiccated as to be barely worth mentioning except for the fact that it still (gasp) contains the word ‘public.’"3 The “public option” (whatever it actually was or might have been…it kept getting downsized before it disappeared completely) never came close to materializing as a major executive priority. Neither did Obama’s briefly considered notion of extending Medicare down to age 55 or his campaign promises to advance government negotiation of drug prices.4
What did emerge and pass, of course, was a bill that New York Times business writer David Leonhardt rightly describes as “In truth…quite moderate. It is,” Leonhardt writes, “more conservative than President Bill Clinton’s 1993 plan or President Richard Nixon’s 1974 plan (in which the federal government would have covered anyone who wasn’t insured through an employer). It’s much more conservative than expanding Medicare to cover everyone. It is clearly one of the least radical ways for the United States to end its status as the only rich country with millions and millions of uninsured.”5
Refusing to pay for the expansion of coverage to poor Americans and those with pre-existing conditions by unseating Big Insurance from its parasitic profits perch, the Obama bill relied on a mixture of semi-progressive taxation and the requirement that all Americans not already covered purchase health insurance on the open market…as a commodity. The mandate, initially proposed by Republicans in the early 1990s (in response to “Hillarycare”), is meant to compensate the still-in-power insurance companies for the terrible costs (top insurance CEOs believe) imposed on them by (they think) vicious government bureaucrats who insist that they provide coverage to sick and disabled patients. If they are going to be forced (imagine!) to insure the horridly non-thriving un-well, they insist, then there can be no free-riders. They must have access to insurance premiums from the young and healthy, who will pay in without requiring much back from the corporate mafia that rules the system.
Judge Hudson worries that the Republican-Obama insurance-purchase mandate “invite[s] unbridled exercise of federal police powers” but the federal mandate functions in service to corporate power, intimately linked to the requirement that access to health care is filtered through the profits logic of the commodity, not human rights. Ironically enough, if the president and Congress had somehow (magically) bucked the nation’s “unelected dictatorship of money” (Edward S. Herman annd David Peterson's excellent phrase) to pass a real progressive health reform bill that actually de-commodified health insurance, Hudson’s right wing decision would not apply.
Somewhere down the road, we shall see how the Republican Roberts Supreme Court rules on the notion that Obama’s corporatist health “reform” unduly advances oppressive federal power. My strong sense is they will uphold the bill’s Republican-style health insurance purchase mandate, which after all requires public participation in a private-run health care system rather than one run by government. We can be sure that their decision will have nothing to say about the veto power of capital, the real ultimate threat to democracy, decency, and indeed human survival  in the 21st century.
Paul Street (www.paulstreet.org)is the author of many articles, chapters, speeches, and books, including Empire and Inequality: America and the World Since 9/11 (Boulder, CO: Paradigm, 2008); Racial Oppression in the Global Metropolis (New York: Rowman & Littlefield, 2007; Segregated Schools: Educational Apartheid in the Post-Civil Rights Era (New York: Routledge, 2005); Barack Obama and the Future of American Politics (Boulder, CO: Paradigm, 2008); The Empire’s New Clothes: Barack Obama in the Real World of Power (Boulder, CO: Paradigm, 2010); and (co-authored with Anthony Dimaggio) Crashing the Tea Party (2011). He can be reached at firstname.lastname@example.org
1 University of Iowa law professor David Orentlicher, “Health Care Mandate Constitutional,” Iowa City Press-Citizen, December 1, 9A.
1A. As Larissa MacFarquhar noted in a May 2007 Obama portrait titled “The Conciliator,” the solutions offered in Obama’s writings, speeches, and town-hall meetings were “small and local rather than deep-reaching and systemic.” They picked and chose in eclectic fashion from whatever ideological tradition seemed convenient. At the same time, she noted, Obama had a curious penchant for addressing deep social problems with no policy at all, preferring to substitute empty political platitudes and soothing bromides of hope and togetherness for concrete policy action proposals. “When he talks about poverty,” MacFarquhar noted, “he tends not to talk about gorging plutocrats and unjust tax breaks: he says that we are our brothers’ keeper, that caring for the poor is one of our traditions.” Such refusal to advance large reform – e.g. single payer health insurance on the Canadian model – reflected what MacFarquhar found to be Obama’s “deeply conservative” take on history, society and politics:
“In his view of history, in his respect for tradition, in his skepticism that the world can be changed any way but very, very slowly, Obama is deeply conservative. There are moments when he sounds almost Burkean. He distrusts abstractions, generalizations, extrapolations, projections. It’s not just that he thinks revolutions are unlikely: he values continuity and stability for their own sake, sometimes even more than he values change for the good. Take health care, for example. ‘If you’re starting from scratch,’ he says, ‘then a single-payer system’—a government-managed system like Canada’s, which disconnects health insurance from employment—’would probably make sense. But we’ve got all these legacy systems in place, and managing the transition, as well as adjusting the culture to a different system, would be difficult to pull off. So we may need a system that’s not so disruptive that people feel like suddenly what they’ve known for most of their lives is thrown by the wayside’…Asked whether he has changed his mind about anything in the past twenty years, he says, ‘I’m probably more humble now about the speed with which government programs can solve every problem. For example, I think the impact of parents and communities is at least as significant as the amount of money that’s put into education.”
MacFarquhar found that Obama’s “deep conservatism” was why “Republicans continue to find him congenial, especially those who opposed the war on much the same conservative grounds that he did.” She noted that some of Bush’s top fund-raisers were contributing to Obama’s campaign and observed that Obama garnered 40 percent of the Republican vote in his 2004 Senate victory. Larissa MacFarquhar, “The Conciliator: Where is Barack Obama Coming From?,” The New Yorker (May7, 2007).
2 When Obama claimed to be the first president to have passed real health reform in the U.S., he didn’t say anything about the following comments he made as a state senator in the early summer of 2003 to the Illinois AFL-CIO: “I happen to be a proponent of a single payer universal health care program. I see no reason why the United States of America, the wealthiest country in the history of the world, spending 14 percent of its Gross National Product on health care cannot provide basic health insurance to everybody. And that's what Jim is talking about when he says everybody in, nobody out. A single payer health care plan, a universal health care plan.” "Obama on Single Payer Health Insurance," June 30, 2003, YouTube video clip at http://www.1payer.net/All-
3 Robert Reich, “The Ersatz Public Option,” Huffington Post (November 19, 2009), read athttp://www.huffingtonpost.com/
4 For the depressing record of Obama’s health “reform” process, see Chapter 3 (titled “Corporate-Managed ‘Health Reform’) of my new book The Empire’s New Clothes: Barack Obama in the Real World of Power (Boulder, CO: Paradigm, 2010).
5 David Leonhardt, “Opposition to Health Law Is Steeped in Tradition,” New York Times, December 15, A1, read at http://www.nytimes.com/2010/
6 See Istvan Meszaros, Socialism or Barbarism: From the “American Century” to the Crossroads (New York: Monthly Review, 2001); Herve Kempf, How the Rich Are Destroying the Earth (White River Junction, VT: Chelsea Green, 2007); James Gustave Speth, The Bridge at the End of the World: Capitalism, the Environment, and Crossing From Crisis to Sustainability (New Haven: Yale, 2008); and (for a chilling look at the depth and degree of the ecological catastrophe already underway in a book that does not wish to specify the culpability of capital/capitalism, Bill McKibben, Eaarth: Making Life on a Tough Planet (New York: Times Books, 2010), 1-101.