In The Conversation, David Brooks and Gail Collins talk between columns every Wednesday.David: Oh my, my. We spend years arguing about Obamacare (now its official bipartisan name) and after all that muss and fuss it may be struck down. That’s certainly how it looks as the oral arguments come to a close. The view among people who know about this stuff was that the lawyer for the opponents of the law, Paul Clement, was like LeBron James on a fast break while the Solicitor General, Donald Verrilli, was like, well, me on a fast break. Somehow less than impressive.  In The Conversation, David Brooks and Gail Collins talk between columns every Wednesday.  Gail: David, I am so worried about how this is going to play out that I can’t even enjoy a good basketball metaphor. I can’t believe this might be overturned. How can this law not be constitutional? The other alternatives are forcing taxpayers to cover the cost of the care in emergency rooms for people who don’t want to pay for their insurance, even if they can, or letting human beings just die on the side of the road. I can’t believe fiscal conservatives think either of those options is a good idea.  Really, I have my hands over my ears. Not listening.  David: Let’s take this in stages. First, on the constitutional level, I can see why the individual mandate might be struck down. It’s one thing to regulate activity, it’s another thing to force people to do something so you can regulate it. Here’s a quotation from Justice Anthony Kennedy making that essential point. The fact that it is Kennedy making this case should be worrying to the law’s defenders:  The reason this is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule but that’s generally the rule. And here, the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.  Gail: You’re right about Kennedy. Worst possible person to be making such a fundamental criticism. And I’ll bet you most Americans wouldn’t agree with his premise, either. Do you think the Constitution really protects Americans’ freedom not to stop a blind man from walking in front of a car?  David: Now let’s go to the philosophical level. While I think the individual mandate is constitutionally suspect, I think it’s philosophically acceptable.  Gail: If there is anything the Roberts court has taught us, it’s that constitutionality is in the eye of the beholder. And I am pretty sure the founding fathers wouldn’t have let that blind guy get run over.  David: The individual mandate was actually the subject of a big debate several years ago on the right. Many conservatives were fine with it then. The argument was that if you crash your Porsche, society is under no obligation to repair your Porsche. But there is a social obligation to save you if you are dying from injuries sustained by the crash. In that sense, health care is different from other goods. The social compact commands us to save one another’s lives. The libertarians disagreed with this position and said that society had no absolute obligation to pay for this, though of course it would be virtuous to do so.  I was for the individual mandate then and remain for it philosophically while I may be against it constitutionally. On this issue, I may be the only person on the planet whose philosophic preference differs from his constitutional position.  Gail: This is why I like arguing with you. You appreciate the real fight here. People don’t actually have the choice of being left to die on the side of the road. And I must say that it’s ironic that the same people who are calling on the government to stop women from ending even a pregnancy that’s just a few hours old are making the implicit argument that it’d be perfectly fine to hospitalize only the car crash victims who can show ability to pay.  David: Now let’s get down to politics. If the law is struck down, who benefits? I think Obama benefits. Republicans were going to make health care a main plank of their campaign. They may not be able to run on the economy, but Obamacare was the centerpiece of their argument that this election is fundamentally about small government versus big government. Without Obamacare as exhibit A, they can still make that case but it is weaker. Republicans will be deprived of their core issue, this unpopular law.  Of course if it is struck down, Republicans could say, “We told you so.” But nobody ever got elected on the basis of “We told you so.”  Gail: You may be right, but there are things more important than the election. We’ve been struggling over health care for how long? Since Clinton? Johnson? Teddy Roosevelt? This isn’t just crucial to our having a better society – it’s crucial to getting a handle on health care costs, and without doing that, we’ll never get the deficit under control.  On the plus side, I do totally believe that in the long run, if the law is struck down, eventually we’ll stop messing around with a choice between half-baked plans and just have the government cover everyone the way it does in most sensible countries. On the minus, it probably won’t happen in my lifetime.  David: If I had more gumption, I’d go back and find all the arguments Obama used in the primary campaign against the individual mandate when he was against it and Clinton was for it. Odd that his signature achievement might be struck down for a provision that he opposed.  Gail: Totally true. Hillary Clinton kept pointing out that if you didn’t make everybody join in, the private-insurance version of universal health care wouldn’t work. She was right. He finally admitted it.  David: The final interesting question is where we go from here.  Gail: I’m O.K. with going back to the Hillary point. The alternative to making everybody have private health insurance is to go to government-sponsored health care for all.  David: I’m just beginning to investigate this, but I’m beginning to think the Swiss health care system may be one that both parties could live with, a compromise between universal coverage and market mechanisms. Of course I’m pretending that we live in a country where the two parties try to seek common ground, which is absurd.  Gail: This already was one big compromise, David. It was basically a Republican idea to begin with, and look what happened. If this is thrown out in court, compromise will never get any traction again. Single payer! Single payer! Maybe you could have wooed me into the middle a few years ago, but no more. No more. Next time around we stop talking about complicated reforms and just go with Medicare for everybody.
Three days of debate at the Supreme Court prompt Brooks and Collins to discuss Justice Kennedy, the social contract, emergency rooms and the constitution.