The Supreme Court should skip the semantics of Obama's mandatory health care reform, argues Noah Feldman. Economically, health insurance is a classic example of market failure, he writes.
When the sun hits the brilliant white marble of the Supreme Court building on a clear spring day, it is so bright you can't look at it. Thus illuminated, the court becomes the sun: the epicenter of the Washington world.
It is exceedingly rare for the Supreme Court actually to be at the center of events in government. But starting on Monday, for a few days, it will be.
The signature accomplishment of Barack Obama's administration is on the line. To strike down the Affordable Care Act, the court would have to announce that mandatory insurance coverage is, quite literally, beyond the power of the government.
In economic terms, that would mean saying that universal health care in the U.S. can't be achieved except through a single-payer system administered entirely by the government, which in political terms seems essentially impossible. If the mandatory coverage provision goes, so does the whole program.
Obama's legal team has embraced this all-or-nothing approach, and for good reason. They have told the court that mandatory coverage is not "severable" from the rest of the law. If the court holds that the government cannot require you to be covered or pay a fine, the entire law will cease to operate.