Rupert Cornwell: An 18th-century battle for modern health care

Out of America: Obama's reforms stir ancient fears over the demarcation of power between government and the individual

(getty images)

In America, that most litigious of nations, political quarrels never die. They just end up in the law courts. Thus it is with health care reform, the signature achievement of Barack Obama's presidency thus far. Once the political argument was about rapacious insurance companies, about Tea Party allegations of "death panels" and similar sinister entities, and whether there should be a "public option" for health coverage, portrayed by opponents of the measure as a giant step towards turning the US into a socialist state. That phase however is now over – at least until 2012, when the Republicans have a shot at regaining the White House and securing a majority in the Senate to add to the majority in the House of Representatives they won in the recent mid-term elections. In that case "Obamacare" would simply be repealed.

But not yet. True, the House last month passed the charmingly named "Repealing the Job-Killing Health Care Law Act" that would have struck Obamacare off the statute books. However, the Democrat-run Senate upheld the law. Waiting as a last line of defence in any case was the president's veto pen. In reality, the struggle has now shifted to the courts, where the fate will now be decided of the boldest attempt yet to align the US with every other advanced industrial economy and offer its citizens universal health insurance. The battle is no longer over technical issues such as pre-existing conditions, state-run health insurance exchanges, and reform's impact on the huge federal budget deficit. It is now much more clear cut. Does the bill the president signed on 22 March 2010 violate that most hallowed and sacrosanct of documents, the US Constitution?

In the past two months, federal judges in Virginia and Florida have ruled that a key part of the law does precisely that. Others may well follow. The section in question is the "individual mandate", in other words, Obamacare's requirement that people without insurance – roughly 15 per cent of the population – have to buy it, or face a fine of $750. The provision is absolutely essential if the law is to work. Without it, a person could literally buy insurance coverage from an ambulance on the way to the hospital emergency room.

In that case, the whole elaborate edifice of Obamacare would surely come crashing down. Insurance, be it of cars, houses or any other commodity, only works on the basis of small regular payments by the many to cover large losses by the few. And so with health care. Without the mandate, healthy people would not buy coverage until they fell ill. Insurance premiums would soar, driving more people out of the system, in turn pushing premiums even higher.

The mandate therefore is mere common sense, Europeans accustomed to a strong and interventionist state would assume. Such reasoning, however, does not take account of America's eternal conflict – one that has existed almost since the day it became a country in the late 18th century – over the demarcation of power between central government in Washington and individual states and persons. The conflict has taken several forms over the years. Sometimes it has unfolded beneath the banner of "states' rights", invoked most famously by the South in its effort to retain slavery, and subsequently to preserve racial segregation.

These days – and certainly since Ronald Reagan famously declared that "government is not the solution to our problem, it is the problem" – the battle is fought out between proponents and opponents of government intervention, between regulators and deregulators. Its most extreme manifestations involve the sects and militia groups holed up in forests and farmhouses, convinced the federal government (or worse still, the UN) is plotting to destroy them.

At issue are two provisions of the Constitution. One is the so-called Commerce Clause that basically gives Congress the right to regulate economic activity between the states. The other is known as the "Necessary and Proper" clause that allows Congress to pass laws that are "necessary and proper" for the governance of the United States, even if they are not explicitly authorised by the Constitution. Again, no problem, you would think. Health care is clearly an interstate issue, and equally obviously, a requirement for people to buy insurance is "necessary and proper" if reform is to work. But that is to ignore the legalistic bent of this country.

Yes, Judge Henry Hudson acknowledged in Virginia, the Commerce Clause allows the state to regulate economic activity. But a failure to purchase health insurance, he ruled, is not an activity: it is "inactivity." Forcing someone to buy health insurance, therefore, is akin to ordering citizens, even if they don't want to, to buy Ford or GM cars to prop up the US motor industry – or to do anything else that central government deems fit. If that isn't detested "big government", what is?

These challenges, and others pending in various states, will be appealed by the Obama administration and are certain to end up in the US Supreme Court. There, too, we Europeans would imagine, common sense will prevail and the law will be upheld. But you can't be sure. The ferocious battle over health care breaks down on strictly party lines. In the House last month, not a single Republican voted against repeal, and only three Democrats voted for it. Which, of course, brings to mind another even more ferocious political dispute that 10 years ago also ended up in the Supreme Court. It was called Bush vs Gore, and the Court's decision to halt the Florida recount handed the 2000 election to George W Bush.

That vote broke along party lines, with the bloc of four liberal justices outvoted by five conservatives. Since then, a Republican president and his Democratic successor have each appointed two new members to the Court. But the balance remains the same, a 5-4 advantage to the conservatives. The only difference is that Justice Anthony Kennedy has replaced the retired Sandra Day O'Connor as the possible swing vote. Health care reform could yet be a damn close run thing.