Thanks to CNN and Fox, Thursday’s SCOTUS announcement was an emotional roller coaster. Like the Dewey-beats-Truman headlines, they both were so eager to be first that they were wrong. Shame on them. This time, print media at least made a stab at reading the Supreme Court decision before pronouncing the individual mandate dead. And, of course, it wasn’t. So constitutionally it’s a tax to fine someone for failing to buy health insurance even if the government can’t compel the person to buy health insurance under the commerce clause. The 5-4 decision is a win for those who couldn’t abide that the United States was the only industrialized nation not to provide health coverage for all its citizens. (It’s also a win for opponents of big government who don’t want to see a broadening of the commerce clause.)
Still, I don’t feel the euphoria expressed by some of the law’s supporters. I feel more the shaky relief of one having narrowly dodged a careening boulder. When I read the dissent, with the unqualified savaging of the law’s asserted constitutionality, I shudder to think how close we came to setting back health care in America decades, if not generations.
Chief Justice John Roberts, a staunchlyconservative Republican, crossed over the court’srecent rigid ideological divide and wrote the majority opinion. Perhaps, after following his more judicially activist brethren on the right in decisions like Citizens United, he, at least in this case, seems to have asserted the value of judicial restraint and thereby helped to untarnish his legacy and the growing nakedly partisan reputation of the Court. Or maybe he just reaffirmed his own big corporate predilections and wrote an opinion to comfort big businesses hungry for some certainty in health care, companies anxious that the court might send them back to square one.
(Similarly, liberal associate justices Ruth Bader Ginsburg and Sonya Sotomayor joined conservatives in opposing the punitive approach for states refusing to expand Medicaid. The Medicaid section is in the cross-hairs, but, given the front loading of the program with free federal dollars, I wonder how many states will turn their back on this early support, just as a matter of principle.)
After jobs and the economy, the health law could be the most defining issue of the presidential election. Mitt Romney has made very clear that the health care approach that he championed as Massachusetts governor – the law that was the signature accomplishment of his tenure as chief executive – is now anathema. We’ll see how that song sings.
We may not see Tea Partiers and their ilk with pitchforks and signs calling for the impeachment of John Roberts as Chief Justice Earl Warren was targeted a generation ago. But the decision has animated parts of the Republican base, otherwise unenthusiastic about their candidate. The cable shows and blogosphere that have used anti-Obamacare screeds to boost their ratings are ginned up, and the deep-pocketed individuals who fear the law as an existential threat aren’t going away soon.
Obama and fellow Democrats have been given a second chance. They botched their first try and saw the results in 2010. White working class Americans still largely view ACA as a welfare program with no positive benefits for them. My hope is that the President, who has been mealy-mouthed in touting the health care accomplishment and what it means for many groups, will be loud and clear with his message. Yes, as with any big program, there are refinements that have to be made. Yes, there must be containment of health care costs. Yes, we need to curb administrative encumbrances. Yes, we need to induce more individuals to become physicians. But we need to be proud that we’re not going to leave people with pre-existing conditions out in the cold. Proud that we’re helping seniors with prescription drugs and young adults with staying on their parents’ policies.
It’s possible for those goals, with bipartisan effort after the election, to be tackled. Thursday’s Supreme Court decision is a step forward. But the law is far from secure. The new House, Senate and possible new president could overturn it. And the next new justice appointed (possibly to replace Ginsburg) could be the deciding vote in a different direction. This is not going to be pretty.