Editorial cartoon by Brian GableBrian Gable/The Globe and Mail
At 10:30 Monday morning, the legal world emitted a collective sigh of disappointment; the U.S. Supreme Court would not rule on the constitutionality of President Barack Obama's health-care reforms that day, after all. But Thursday, we should finally know whether or not the individual mandate – the requirement that all Americans carry health insurance, or pay a fine – has survived the court's scrutiny.
Regardless of the outcome, Obamacare's journey to the Supreme Court has already changed American constitutional law, and Canadians should take notice. In the United States, opponents of universal health insurance have turned a rule of American federalism – the Commerce Clause of the U.S. Constitution, which limits the power of the federal government with respect to the states – into a rule of individual liberty. In Canada, meanwhile, our own federal government is using a rule of Canadian federalism – section 92 of the Constitution, which gives the provinces jurisdiction over "hospitals" – to cut the ties that bind our national health care system. The result, in each country, could be similar: unequal citizenship thanks to health care that depends on where you live.
None of this was supposed to happen. When the Obama administration's health-insurance reforms were debated in Congress, the constitutionality of the individual mandate was simply assumed. When a reporter from a conservative website asked Nancy Pelosi, then speaker of the House of Representatives, to point to a specific constitutional provision that authorized the mandate, she did not even dignify the question with a response. "Are you serious?" Ms. Pelosi sniffed. "Are you serious?"
He was. And so was Mr. Justice Anthony Kennedy, 30 months later, when the individual mandate reached the Supreme Court. "When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way," Judge Kennedy asked Solicitor-General Donald Verrilli, "do [you] not have a heavy burden [of] justification to show authorization under the Constitution?"
Behind that question is a flawed assumption: that the constitutional provision at issue has anything to do with, in Judge Kennedy's words, "the relation of the individual to the government." It does not; the Commerce Clause lays out the foundations of federalism, not the limits of liberty. If the Supreme Court rules otherwise, it will have steamrolled a long line of its own precedents, and changed the ground rules of American government.
But even if it does not, the trials of Obamacare offer a cautionary tale for Canadians – a case study in how federalism itself can be used as a weapon against a federal commitment to health care.
Canada's government has already announced that it intends to abandon its long-standing leadership on the issue. Finance Minister Jim Flaherty revealed last December that the annual growth of federal health funding, now pegged at 6 per cent, would be cut after the 2016-17 fiscal year. To be sure, the Conservatives intend to avoid the sort of high-stakes negotiations that took centre stage when the federal-provincial health transfers were last renegotiated, in 2004. But Ottawa's low-key approach will come at a cost. In 2004, Paul Martin's government secured a 10-year agreement that set national benchmarks for better health care, in exchange for increased federal funding. In 2014, Stephen Harper's government will simply cut a cheque and walk away.
Without federal leadership, Canada will be left without a health-care system. In its place, in the best case, we will have 13. The Canada Health Act enshrines a federal commitment to public health care, but it must be enforced by Ottawa to be effective. To wit: In 2010, when Quebec signaled its intention to introduce health care user fees, the federal response was silence.
And then there are the courts. In 2005, the Supreme Court of Canada ruled 4-3 that, unless timely access to public health care was made available, Quebec's ban on private health insurance violated the province's Charter of Human Rights and Freedoms. That ruling was narrow, but the next one need not be; just as their American brethren may soon strike down Obamacare's mandate as an impermissible imposition on individual liberty, our own Supreme Court may someday entertain the argument that, by restricting access to private care, the Canada Health Act itself violates an individual's right to life, liberty, and security of the person.
Yes, that argument is far-fetched. Sure, its success is almost impossible to imagine. And besides, what Canadian – or provincial – government would risk political annihilation by opening the door to private health care? But if we are tempted by such complacency, we should spare a thought for Nancy Pelosi, Donald Verrilli, and the vast majority of American constitutional scholars – all of whom remain convinced that Obamacare is constitutional beyond question. Whatever happens this week, their Supreme Court has already proved them wrong.
Adam Goldenberg is a Kirby-Simon Fellow at Yale Law School and was chief speechwriter to Michael Ignatieff