The Right Ruling

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.

House Speaker John Boehner will have to confront difficult issues in the health care debate.

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 initial coverage took a tidbit they heard early in the opinion – that the individual mandate was not allowed by the Commerce Clause – and mistakenly informed the world that the mandate was struck down, causing people to compare this with the early headline saying “Dewey defeats Truman.”

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.

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  1. #1 by lbwoodgate on June 28, 2012 - 21:01

    “Republicans will have to confront the health care problems that face the country and offer plausible solutions.”

    That’s all I have ever expected from my congressman but like most conservatives they have nothing to offer that will legitimately lower health care costs and make it more affordable for all people. Nothing that is except the tired old saw about how unregulated free markets will solve this issue. It’s as if they are totally oblivious that the out-of-control health care costs were the result of fewer and fewer over sight regulations to curb policies made by the private health care sector to put profits above people.

  2. #2 by Alan Scott on June 30, 2012 - 13:58

    It’s all about winning . Justice Roberts had to invent a legal theory that the most incompetent lawyer would be ashamed to put his name on . Following the Words of the Constitution is not Judicial activism . Expanding the Commerce Clause in Wickard v. Filburn, or expanding the right of privacy in Roe V, Wade, or finding ObamaCare Constitutional under the power to tax , now there is Judicial activism . When you have to stretch the language to make your decision fit, that is Judicial Activism .

    When you are worried more about the Court’s reputation than the protections in the Constitution, that is Judicial Activism . The court is supposed to be above political influence . I guess Obama threatening the Court worked . What a shame .

    • #3 by Scott Erb on June 30, 2012 - 19:21

      Fair points, though all you and I have are opinions about what is constitutional, the court decides how the document is interpreted. And people who support Roe V Wade and others on the left that you call activism believe they are following the words of the constitution. I tend to be minimalist in believing the Court should overturn democratic decisions — it has to be a pretty clear violation of rights. That makes my judicial philosophy often more with Republicans than Democrats, though I find Scalia and Thomas to be activist from the right. If I were a Supreme Court Justice I’d probably vote more rarely than the others to overturn laws produced through the democratic process. I’d be consistent too – I’d have the left and the right disappointed.

  3. #4 by Alan Scott on July 2, 2012 - 00:29

    Scott ,

    Then would you hesitate to have over turned state abortion laws as Roe V. Wade did ? Or would you have looked for a different clause than the right to privacy . You realize that if you want to do something, the right to privacy clause is even better than the interstate commerce clause ?

    Stay with me on this . If the privacy clause says that the States have no authority to outlaw abortion, even to save the life of an unborn child, then the privacy clause can also be used to strike down Mayor Bloomberg’s proposed Big Gulp Law. If the States cannot tell a woman what to do with her reproductive tract because it violates her privacy, how much less is it a stretch to tell the esteemed Mayor that he cannot tell us fatties what we can put in our stomachs ?

    The Constitution was meant as a limit to what our Federal government can do to us . That government is always seeking more power over us . The health care take over is the scariest in recent memory . The Federal Government can now punish you for anything because anything you choose to do affects health care costs .

    • #5 by Scott Erb on July 2, 2012 - 01:00

      I am pro-choice, but I would not have ruled to overturn abortion laws in Roe v Wade. I think a woman should have that right, I’m absolutely convinced…but I don’t see it in the constitution.

      • #6 by Titfortat on July 2, 2012 - 23:31

        Pro choice is a Misnomer. It should read “My” choice, as in the woman only.

  4. #7 by Alan Scott on July 2, 2012 - 18:02

    Scott ,

    Thank you for being totally honest . Obviously the Constitution was written before abortion and other issues were thought of . My big problem is with the Supreme Court adapting the language in the Constitution in obviously spurious ways for political advantage . To use an example that neither of us has a stake in, the Wickard v. Filburn, decision . Democrats and Republicans both try to pack the court with biased referees .

    In our history, this is the flawed system that we’ve had for 2 plus centuries . In pre Civil War it was the pro slave and Abolitionist factions who used the court to gain political advantage . In the end, mass killing and not the court settled the slavery question . Not a thing has changed, but the issues .

    The Founders did not foresee the issues, other than slavery . They did foresee the partisanship. They did foresee that a lot of the battles come down to Federal verses State power . Slavery, Abortion, racial discrimination, gun rights, and health care all fall into that category .

  5. #8 by Holly on August 16, 2012 - 15:48

    Nice post which 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. Thanks a lot for posting this article.

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