Thursday, June 28, 2012

Supreme Court upholds (most of) Obamacare: The day the conservative dream (sort of) died

So wait. What happened today? Sorry, I was too busy thinking about the universal health care system we have here in Canada.

Something about a court case?


I'm kidding, of course.

Like many others, like many of you perhaps, I went through a sudden roller coaster of emotions when I heard the news.

Actually, when I read the headline at, about the individual mandate being struck down, and then quickly learned, via the indispensable SCOTUSblog that, oops, CNN had gotten it wrong (as had Fox News, by the way), that in fact the Court had upheld (almost the entirety of) the Affordable Care Act, including the controversial (though only because Republicans have made a partisan issue of it, not because it really is) mandate, which the Court, with Chief Justice Roberts joining the liberals (or, more accurately, those who aren't right-wing ideologues engaged in a campaign of relentless judicial activism to undo American democracy) to form a 5-4 majority, held to be a tax and so constitutional.

Great news, I thought, particularly for the tens of millions of Americans who would have been denied coverage if the law had been struck down, but also for President Obama, for whom this has become a signature achievement of his presidency.

Romney, who of course signed into law the forerunner of Obamacare in Massachusetts and who was a strong advocate of progressive (if also market-oriented) health-care reform before he decided to run for president and so needed to suck up to the increasingly extremist Republican base, gloated last night that "they're not sleeping real well at the White House," but this was a significant loss for him, one that he was at pains to address today. He insists he'll work to repeal (and replace) Obamacare, but what he offered was not just red meat for the right but blatant dishonesty about what Obamacare actually does. (As Ryan Lizza writes, repeal would be highly unlikely under President Romney. It's all just Republican fantasy.)

Indeed, it's been a bad couple of weeks for him, what with the Court striking down most of Arizona's draconian anti-immigrant bill but leaving perhaps the worst provision in, the right of law enforcement to demand proof of citizenship/residency, which was just enough to hand the president a win as well as a significant campaign issue, as he can continue to campaign against Republican extremism on the immigration issue generally while backing Romney into a corner.

And of course it didn't help Romney that Obama also implemented, by executive action, the DREAM Act, a popular measure that will prevent the deportation of the children of undocumented immigrants. It was enough to get supportive words from the right-wing likes of Marco Rubio and Bill Kristol, and with it the president only solidified, if not expanded, his hold on the Latino vote, a key demographic that could swing the election.

On this issue, as on so many others, what we're seeing is a stark contrast between Obama's principled leadership and Romney's opportunistic dithering, and it's one that will no doubt be highlighted when the campaign gets underway in earnest later this summer and into the fall.


As for today's ruling, as Richard wrote, a win is a win, and in a way it's as simple as that. For now at least, the president can claim victory -- and that justice was truly done.

And it's going to be tough for Romney to move forward, as the ruling reinforces the deep divide in the Republican Party between the absolutist right-wing ideologues to whom Romney has been sucking up and the somewhat less absolutist but still deeply ideological pragmatists who are running his campaign. While the ideologues are fired up over issues like immigration and health care, as on other social issues like abortion and, as we saw during the primaries, birth control, these are losing issues for Romney. He can't win independents and other swing voters in key states by playing so hard to the right. So what I suspect is that the more sensible people around him, including perhaps Karl Rove, are advising him to try to move away from these issues and back to the economy, where his only hope for victory can be found.

Which is to say, while there will continue to be much huffing and puffing from the right, it wouldn't at all surprise me if Romney himself didn't say much more about either immigration or health care and if his campaign went back to his meat and potatoes. If nothing else, what these past couple of weeks tell us is that Romney desperately needs to change the narrative, which has swung against him hard for the first time since he locked up the nomination.

Obama needs to do what he can to counter that effort, not least by talking about what the law, what his law, does. If he can finally sell it to the American people -- and we know its various elements are popular -- he'll benefit in November.


Anyway, there's obviously been a lot of reaction, even a lot of intelligent commentary, in response to today's ruling, and I don't intend to add to the specifics here.

Generally, right now, I'm trying to focus on the positive, on the win. But it's not all good. Not at all.

Conservatives turned quickly on Roberts, now persona non grata among the partisan ideologues, but actually the majority ruling is troubling. For two reasons, one legal and one political:

Legal: As Jon Chait writes:

[F]ive justices ruled that the Affordable Care Act cannot be upheld under the Commerce Clause. This is a bizarre and implausibly narrow reading — if Congress cannot regulate the health-care market, then it cannot really regulate interstate commerce. By endorsing this precedent, Roberts opens the door for future courts to revive the Constitution in Exile.

But Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

Which is to say, this ruling may actually turn out to be a significant defeat for the federal government, and for federal authority generally, long a target of the right, not least with respect to federal efforts to impose progressive reforms on anti-progressive states. (For more on the Commerce Clause, and its possible future, see Jon Cohn, who finds that perhaps, just perhaps, what Roberts did won't actually cause much constitutional harm. Greg Sargent makes the same point, arguing that it's really not a big deal.)

Political: In calling the mandate a tax, the Court is saying that Democrats voted for a tax. And that's rarely ever good politically, particularly during the crazy days of election season.

As Brian Beutler writes:

The Supreme Court's narrow decision to uphold the Affordable Care Act's insurance mandate as a valid exercise of Congress' taxing power has reignited a spin war over whether Democrats broke their pledge not to raise middle-class taxes, and whether they misled the public by insisting the mandate was not a tax during the contentious health care reform debate.


Intent matters. And the Court essentially held that the law's authors created something that functions like a tax, but serves the purposes of a penalty.

But the GOP is weighing various repeal bills, including legislation to strip the mandate. The fact that the Court upheld the mandate on taxing power grounds will make it harder than it already would have been for vulnerable Democrats to vote against that measure.

The truth is actually quite nuanced (see Lyle Denniston for more), but when does that ever matter on the campaign trail? Look for Republicans to accuse Obama and the Democrats of imposing a new tax on the American people -- Dear Leader Rush is already leading the way -- and thereby try to score political points. It's a silly argument, but Democrats could very well find themselves on the defensive.

My quick response to the legal point is that I'm worried about what Roberts might be up to over the long haul while nonetheless celebrating the ruling, while my quick response to the political point is that it's manageable if Democrats leave the mandate aside (and avoid playing defence) and instead focus on all the good things the law does (and so go on offence, forcing Republicans to defend the indefensible status quo ante).

But while these are indeed serious matters that deserve our attention, let's pull this back to what really matters today: The Supreme Court, despite a conservative majority, voted to uphold not just one of the president's signature achievements but one of the most significant progressive reforms in U.S. history.

Whatever concerns we may have, that is reason enough to celebrate a huge victory over the forces of darkness.

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  • Only what's in the majority opinion counts as law.

    That 5 judges didn't buy the commerce clause thing doesn't matter because they were not the five judges adhering to or concurring in the majority ruling.

    By Blogger Unknown, at 12:23 PM  

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