Tuesday, June 19, 2012

The assault on American constitutional democracy: Right-wing judicial activism, a partisan Supreme Court, and the end of Obamacare

With the Supreme Court set to rule on the Affordable Care Act ("Obamacare") later this month, and with signs pointing to the Court striking it down at least in part -- specifically the individual mandate, one of the questions being whether the mandate can be severed from the rest of the legislation, and if so what that means for the legislation as currently written -- we need to think seriously about what it all means.

First, the brutal reality: Tens of millions of Americans would effectively be denied health insurance.

Second, the immediate political reality: Health care would become a major campaign issue, with the president likely using the decision to strike down all or part of the legislation to challenge Romney on his views on health care generally, chastising him for promoting reform in Massachusetts and then opposing almost identical legislation federally, that is, for being for it as governor and then against it when running for president. I suspect that Obama would win this battle overwhelmingly, rallying his supporters, and even many of his more skeptical progressive supporters, behind him, with the contrast so blatantly apparent. And, remember, opposition to the Affordable Care Act comes not just from the right but from the left, which still thinks Obama could and should have done more and is opposed to it largely because it doesn't go far enough, specifically because it doesn't establish a single-payer system. This skews poll numbers, suggesting that health-care reform itself is unpopular. It isn't. It's massively popular. And Obama would be able to make a strong case for it on the campaign trail.

Third, the broader political reality as it relates to the Supreme Court and the direction of the American legal system generally. On this, I'll turn it over to Kevin Drum:

If the court does overturn the mandate, it's going to be hard to know how to react. It's been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can't think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity. When the court overturned the NRA in 1935, it was a shock -- but it was also a unanimous decision and, despite FDR's pique, not really a surprising ruling given existing precedent. Overturning ACA would be a whole different kind of game changer. It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don't like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that's pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

In this sense, a Supreme Court ruling against the legislation, as "laughable" as that might have seemed when the bill was passed, would be an assault on the very foundations of American constitutionalism.

It's what conservatives have been aiming for -- the politicization of the American judicial system, with conservatives ruling in partisan ways on what and what isn't constitutional -- and it may be about to destroy democracy as you know it.

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