The media predicts that the pummeling the Patient Protection and Affordable Care Act took last week in the U.S. Supreme Court shows that at least five justices are prepared to torpedo its core mandate: that everyone must buy health insurance or pay a penalty. This would reportedly sink the law as deep as the rusting Titanic.
But as Mark Twain once said, "Reports of my death have been greatly exaggerated." The same may be true for President Obama's health care program.
'Cruel and unusual'
The lead actor in this comedy-tragedy is Antonin Scalia (pictured), who not only asked the toughest questions, but cracked wise about the court having to read the 2,700 pages of the act, referring to reading it as "cruel and unusual punishment." Scalia and his fellow conservative judges are expected to unite on whether the president is stretching the Commerce Clause of the U.S. Constitution by forcing people to buy health insurance, or risk being - penalized.
This is the crux of the argument of the 26 attorneys general who are challenging the law: Can the federal government compel people to buy something they don't want?
Justices in your backyard
But Scalia has already voted to expand the Commerce Clause, notes Robert VerBruggen in the "National Review." In that case, Scalia invited himself into a California resident's home by arguing that the federal government had the right to forbid state residents from growing medical marijuana in their own backyards for their own use. This was a big stretch for the Commerce Clause -- and the Constitution.
Court pundits note that Scalia has taken different positions on this clause at various times. Last year, the court declined to take up a case that questioned whether or not Congress could use the Commerce Clause to forbid violent felons from buying, owning or possessing body armor. Scalia sided with Justice Clarence Thomas in a dissent.
And as a Supreme Court justice, Scalia can pretty much do as he pleases, since most of the debate will take place behind closed doors in the court's chambers.
Already a mandate
But there's precedent here that's been overlooked. The federal government already penalizes people who don't sign up for a federal health care program. The longer seniors without health insurance delay in signing up for some Medicare programs, the more onerous the penalties.
In 2006, then-President George W. Bush and fellow Republicans enacted a law requiring anyone enrolled in the Medicare program to have Medicare Part D drug prescription coverage, or pay a penalty if he or she purchased it subsequently. Medicare enrollees who opted to ignore this mandate paid for it later in the form of higher premiums for each year they waited. It was never seriously challenged.
This law was rammed through Congress by Louisiana Republican Rep. Billy Tauzin and then signed by Bush, neither of whom advocated for big government. And, without a peep, millions of Americans either signed up, or were signed up by their pension plans for this drug insurance.
Whether or not this type of health insurance helped seniors is debatable, but it definitely benefited the drug companies. And Tauzin, who pushed the mandatory payment for the drug plan through Congress, received $2 million in perks from Big Pharma and ultimately went to work for the industry.
If the proposed health insurance law is shot down by the Supreme Court and Obama carries a Democratic Congress with him into 2013, why not simply expand Medicare to include everyone? It was once considered an option, and a far simpler one, before the Patient Protection and Affordable Care Act.
It would even be hard for Antonin Scalia to argue this one.