America's great shame -- and there is much shameful about this once great nation these days -- is that it has been alone among industrialized countries in not offering its citizens access to affordable health care.
Consequentially, over 40 million people have no health insurance, emergency rooms are overwhelmed with people who have no doctor to turn to when they become ill, and the infant mortality rate is unconscionably high because so many women are unable to afford prenatal care.
The Affordable Care Act, better known as Obamacare, was a huge step toward bringing the U.S. in line with those other industrialized countries by creating a more rational health insurance market while stopping well short of establishing a government-run program such as those in England, Canada and elsewhere.
Obamacare would help an estimated 33 million people buy health insurance, cap insurance premiums for the poor, help those under age 26 stay on their parents' health plans, protect those with pre-existing conditions, require insurers to spend most of every premium dollar on medical care, as opposed to administrative and advertising costs, accelerate a decrease in health care costs, and provide generous tax credits to small businesses who provide health insurance for their employees.
The 2010 law would require adults to pay either a modest $695 or 2.5 percent of their annual income, whichever is greater, through what is called an individual mandate, beginning in 2014. The mandate is a recognition that some people will not be able to afford insurance and aims to keep down the cost down through a mandatory surcharge on people who can afford it. There would be a modest penalty for those who refuse to participate.
But to most Republicans, Obamacare isn't about health care, let alone helping their fellow citizens from cradle to grave. In their view, the law and especially the individual mandate provision is an unconstitutional affront to the almighty free market. In other words, if people have an accident, get sick or contract diseases and cannot afford to be treated, that's their tough luck. Really tough luck at a time when millions of people remain out of work. Never mind that the profits-always-trump-patients crowd would never acknowledge that the almighty free market has resulted in a staggering level of health care spending per capital in the U.S. that is the highest in the industrialized world and more than double most nations.
Requiring Americans to buy health insurance is a violation of their "freedom and liberty," according to Representative Michael Bachmann, a vociferous opponent of the law and, with Sarah Palin on the sidelines, a leading peddler of the death panel myth, which has it that under a provision of Obamacare federal bureaucrats would rule on whether you and I should live or die if we are gravely ill.
That was the stark ideological divide -- The Democrats extending a helping hand and the Republicans slapping it away -- confronting the U.S. Supreme Court when it agreed to rule on a lawsuit seeking to strike down the individual mandate brought by 26 states -- all not coincidentally led by Republican governors.
The plaintiffs asserted that the individual mandate is unconstitutional because Congress overstepped its bounds in regulating interstate commerce by requiring people who lack health insurance to purchase it, while the provision in the law expanding Medicaid to cover millions of additional low-income people is an unconstitutional use of power over the states. The Obama administration responded by arguing that because everyone needs medical care at some point in their lives, they already are engaged in the economic activity of deciding how to finance their care and the Affordable Care Act merely regulates how they must go about performing that activity.
Based on the tone and substance of the justices’ questions and comments over three unprecedented days of oral arguments in March, it appeared that the relatively liberal Justices—Ginsburg, Breyer, Sotomayor, and Kagan—would vote to uphold the mandate; Justices Scalia, Thomas, and Alito would vote to strike it down; and Chief Justice Roberts and Justice Kennedy were potentially swing votes. The cipher Thomas remained mute during the arguments, as has long been his custom, but his vote would be easy to predict.
The court's conservative majority has revealed itself to be a de facto arm of the Republican Party because of Citizens United, a decision that in effect allows corporations and wealthy individuals to buy elections, and other decisions based on ideology and not law. As recently as Monday it struck down a Montana campaign finance law that would have circumvented Citizens United in an effort to put an end to a deeply-rooted culture of political corruption in that state that allowed ranching and mining interests to . . . yes, buy elections, while in siding with a minority of justices in overturning Arizona's draconian anti-immigrant law Justice Scalia unleashed a vindictive and deeply unethical attack on President Obama's amnesty for young illegal aliens born in the U.S.
The so-called smart money had it that in ruling on the Affordable Care Act, the high court would at least "sever" the individual mandate while letting the rest of the law stand, if not throw out the entire law. A minority, myself included, hewed to the view that a majority would take a more sensible approach and allow the law to stand because it is, in essence, little different from requiring Americans to pay income taxes or contribute to Social Security. Or to riff on a Republican value, it is about personal responsibility.
I am happy beyond belief to have been correct as the Supremes ruled 5-4 this morning that the individual mandate is not unconstitutional and upheld the entirety of Obamacare with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read. Chief Justice Roberts, apparently drawing on his background as a strict constitutionalist -- or as "an institutional conservative rather than a radical reactionary," as Andrew Sullivan put it, joined Ginsburg, Breyer, Sotomayor, and Kagan.
There were not five votes to uphold the law on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices -- Roberts, Ginsberg, Sotomayor, Breyer and Kagan -- did agree that the penalty that someone must pay if they refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. ax if they don't. The other justices split 4-4, with four wanting to uphold it as a mandate, and four -- Kennedy, Alito, Scalia and Thomas -- opposed to it in any form.
Lyle Denniston, the dean of Supreme Court journalists, writes at SCOTUSBlog that:
"Essentially, a majority of the court has accepted the administration's backup argument that, as Roberts put it, 'the mandate can be regarded as establishing a condition -- not owning health insurance -- that triggers a tax -- the required payment to IRS.' Actually, this was the administration's second backup argument. Its first argument was the Commerce Clause, the second was the Necessary and Proper Clause, and third was as a tax. The third argument won."
Because the mandate survives, the court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding.
The decision, which affirms the greatest achievement of President Obama's first term, is an enormous victory for he and Congressional Democrats.
In addition to the political reverberations, the case helps set the rules for one of the largest and fastest-growing sectors of the economy, although it also will be a rallying point for conservatives -- which is to say Republicans. The health care debate remains far from over and Mitt Romney, the presumptive Republican presidential nominee, has promised to undo the law if elected, although his argument that Romneycare was different than Obamacare is now fatally wounded.
Under Roberts, the court has delivered numerous major victories to conservatives in addition to Citizens United. It could take up other major issues to which conservatives are opposed, including affirmative action, same-sex marriage and the Voting Rights Act in its next term. And while conservatives were angry that Roberts, a George W. Bush appointee, had betrayed them, other presidents have regretted some of the decisions made by their appointees, most notably Richard M. Nixon’s appointees forcing him to hand over the Watergate tapes that sped his resignation from office.
David Bernstein, writing at the Volokh Conspiracy, notes that at first glance Scalia’s dissent reads like it was originally written as a majority opinion:
"Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion . . . to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA?"
Notes Josh Marshall at Talking Points Memo:
"[W]e may learn that President Obama sacrificed his presidency to push through this piece of legislation — the Dems already lost Congress over it. But presidencies are for doing important things not just for getting elected to second terms in office. And I strongly suspect that even if Mitt Romney wins and gets a Republican Congress, they still won’t be able to get rid of this law.
"That counts. That matters."
Reaction from opponents of Obamacare was fast and furious while Democrats seemed more relived than celebratory.
“It’s never been more important that we elect a president who understands the marketplace and will make job creation his top priority,” said Governor Bob McDonnell of Virginia, the chairman of the Republican Governors Association. “By replacing Barack Obama with Mitt Romney, we will not only stop the federal government’s health care takeover, but will also take a giant step towards a full economic recovery.”
Tea Party Express, a group opposed to the law, issued a statement saying it is committed to repealing it.
“The Supreme Court ruled to uphold this unprecedented intrusion of the federal government into our personal health care decisions. The American people still reject this legislation as bad policy and unwanted government interference with their lives."
"We will continue to implement this law and we'll work together to improve on it," said Obama, speaking somberly in the White House East Room, the same setting he used to announce the 2011 death of Osama bin Laden. "What we won't do -- what the country can't afford to do -- is re-fight the political battles of two years ago or go back to the way things were. . . . It's time for us to move forward."
Senator Harry Reid of Nevada, the majority leader, took to the Senate floor to praise the court, saying “the rule of law” had been place “ahead of partisanship.” Reid suggested the law would be tweaked in Congress to address some unpopular elements. “We will do that working together,” he said. “Our Supreme Court has spoken,” he said, cautioning against Republicans’ insistence on legislative repeal.
Michelle Bachmann, attempting to speak outside of the Supreme Court, had to shout over chants of "four more years."
Click here to read the decision.
Photo courtesy of Garyhe.