Archive for June 28th, 2012
Thursday the Supreme Court ruled 5-4 that the Affordable Care Act, nicknamed “Obamacare” is indeed constitutional. In so doing, they rejected a judicial activism that would severely limit the democratic power of the people.
The ruling is causing confusion. Because the individual mandate (everyone has to buy insurance) is permissible due to the ability of the government to tax, some are claiming that this amounts to a huge tax increase. That’s false – people will be buying insurance, not paying a tax. Those who refuse to buy insurance will pay penalties. However for many Republicans, convinced by oral arguments that overturning the act was an almost sure thing (intrade had the likelihood at 75%), it’s an attempt to walk back the celebratory tone they’d been taking.
This also ensures that the debate in the run up to the 2012 election will be more serious than it has been. Until now the GOP has been simply opposing the law, saying they had ‘free market’ alternatives that will ‘increase choice.’ A close look shows that they evade most of the controversial issues. The emphasis has been on creating ire over Obamacare and hoping the Supreme Court would do the dirty work and strike down what will be very difficult for them to repeal.
With the Supreme Court saying that this is for Congress and the President to work out – Justice Roberts correctly noted that it is not the job of the Court to rule on the wisdom of the law – the politicians will ultimately have to get into the nitty gritty of the law. The Democrats will point out all of the positive aspects of the law and force Republicans to embrace some aspects of it. Republicans will have to confront the health care problems that face the country and offer plausible solutions.
In a perfect world, one could hope that such debate would yield good ideas from both sides of the aisle and a mutual willingness to improve the law. In the world we have that’s unlikely. The worst result is that a massive amount of money is spent to manipulate public opinion and drown out the serious side of the debate, saving politicians from having to deal with reality.
While that is certainly possible, this issue might defy that trend. If President Obama is re-elected, the Republicans will have to accept that a repeal is unlikely, and shift towards trying to make it work better. If Governor Romney is elected then his job will be more difficult. The Senate is likely to block an all out rejection of the law, and those helped by the popular provisions will put immense pressure on the GOP not to “throw the baby out with the bathwater.”
I suspect that in either case we’ll have a similar result. The two parties will recognize that the US now has a health care system that aspires to universal coverage and tries to contain costs. Information about what works and what isn’t working will guide reforms to the act. As with social security and medicare, over time it will be taken as natural to have a health care system; the biggest hurdle was the Supreme Court.
CNN’s “oops” moment pictured above was caused in part by the widespread belief that the act would be ruled unconstitutional. Most pundits were almost certain of the result, especially after the government seemed to do very poorly in oral arguments. But oral arguments rarely give a good glimpse of what the result will be, and on an issue like this oral arguments can be virtually irrelevant. The Justices have intense discussions to try to get the law right.
The most important aspect of this ruling is that the Supreme Court refused to interpose itself into an important political decision that should be left to the people and their representatives. This is the kind of issue that we as a society have to work through politically, and the Court should allow that. I’ve often agreed with conservatives who oppose judicial activism from the left; judicial activism is also wrong from the right.
Justice Roberts sent a signal today that while he has a conservative ideology, he wants to protect the Supreme Court’s integrity and reputation. I hope that this means that his court will refrain from judicial activism and leave most issues in the hands of the democratic institutions. There are important exceptions, of course, involving fundamental rights and equality under the law. But today Justice Roberts rose above politics and proved that he understands his role as Chief Justice.