Lawyers from the health insurance and hospital industries have petitioned the Supreme Court to save President Obama's health-care law from a constitutional challenge by 26 states and a small-business group, while other big-business lobbies have stayed neutral.
Corporate America's stance on the Obamacare case before the high court this week will surprise those who followed Obama's narrative or most news coverage of the law, which was supposedly a broadside to the special interests. But back then, health-sector lobbies either supported the bill or at least supported its core provisions. Today, industry briefs before the court show the same lack of "special-interest" opposition.
Blue Cross/Blue Shield of Massachusetts filed an amicus brief with the court in support of Obama's Department of Health & Human Services. The insurer writes that it played a central role in crafting Mitt Romney's Massachusetts health-care law that served as the prototype of Obamacare, and that it "remains firmly committed to the 2006 health care reform and the individual mandate, and believes that the closely related reforms enacted by Congress in 2010 will further advance important economic and social goals."
On the question of constitutionality, Blue Cross/Blue Shield of Massachusetts argues that the individual mandate is "a valid exercise of the Commerce Power because Congress had a rational basis for concluding that, in the aggregate, the practice of self-insuring for the cost of health care substantially affects interstate commerce."
In other words, a health-insurance company thinks that people insuring themselves by saving, instead of by paying insurance premiums, is the sort of thing Congress should be regulating -- indeed, banning.
Blue Cross's court filing, like that of the nation's largest health-insurance lobby (America's Health Insurance Plans, or AHIP), primarily argues that the court cannot "sever" the mandate from the law's regulations on insurers. If the court struck down only the mandate, insurers would still be required to cover everyone, but without the funds that would come from forcing everyone to buy insurance.
Romney and Obamacare defenders say the mandate was primarily about preventing "free riders" -- people using emergency room care they can't afford -- but the insurers' court briefs admit it was largely about "improving risk selection by bringing healthier people into the risk pool," as Blue Cross put it. That is, the mandate was intended to force healthy people to subsidize the health care of less healthy people, but with corporations, instead of the government, as the middleman.
Like AHIP, most industry groups have avoided taking sides on the central question -- is Obamacare's individual mandate constitutional -- and focused on the same severability issues. The Chamber of Commerce's brief is all about severability, too.
Neera Tanden, who helped craft the law as an Obama aide, told Bloomberg News that "large businesses, if anything, have been supportive of the bill and are silent on the lawsuit." Bloomberg also quoted Steve Wojkcik, top lobbyist at the National Business Group on Health, saying, "Our view at this point is it's the law of the land."
Only two business lobbying groups filed briefs taking sides on the question of Obamacare's constitutionality: the small business lobby is against Obamacare, while the hospital lobby is for it.
The National Federation of Independent Businesses is the lead plaintiff on one of the cases being heard this week. It argues that the law as a whole will crush small businesses under regulatory burden and health-care costs.
The American Hospital Association is a $20-million-a-year lobby (the third-biggest lobbying organization in terms of spending since 1998, according to data from the Center for Responsive Politics). The AHA has filed briefs in support of the law, and its amicus brief before the Supreme Court argues that "the court should uphold the individual mandate."
The health-care law provides new taxpayer subsidies to hospitals, and the individual mandate could reduce the "uncompensated care" hospitals now provide for the uninsured. Plus, more universal and subsidized health coverage could allow hospitals to raise prices.
It makes perfect sense that a health insurer like Blue Cross would defend a law requiring people to buy health insurance. It makes perfect sense that a hospital lobby would support a law that brings more money into hospitals.
It makes no sense, however, that given industry's stance, Obama still gets away with pretending the law's opponents are shills for industry.
Timothy P.Carney, The Examiner's senior political columnist, can be contacted at firstname.lastname@example.org. His column appears Monday and Thursday, and his stories and blog posts appear on washingtonexaminer.com.