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US Supreme Court hands Obama
his greatest victory
On
28 June 2012, the US Supreme Court upheld Barack
Obama's signature accomplishment as president
after the Affordable Care Act's torturous passage
through Congress in 2010. With very few
exceptions, no other Supreme Court decision has
had the potential to influence a presidential
election more than the court's ruling upholding
the Affordable Care Act. By J BROOKS
SPECTOR.
Mid-morning on Thursday,
the US Supreme Court issued a monumental ruling
that went straight to the heart of questions over
the healthcare reforms passed by Congress in 2010.
The court ruled that the stipulated penalties for
failing to participate in
mandatory health
insurance could not be based on the commerce
clause of the Constitution, the one that gives
Congress the right to regulate interstate
commerce. This is what the Obama administration
had actually argued - ineffectually in the view of
many legal commentators - based on some admittedly
obscure precedents like a congressional mandate on
the members of the US militia back in the early
19th century to buy their own muskets, bullets and
black powder.
But, and this turned out to
be the key point of the ruling, the court's
opinion stated the Affordable Care Act (and most
of its many, complex details) clearly was
constitutional under the explicit stated power of
Congress to establish taxes on citizens. As a
result, the US government couldn't force everyone
to buy insurance. The mandate (or tax) penalty was
constitutional if they didn't buy insurance. With
that decided, so too virtually all of the rest of
the law.
This subtle distinction at first
actually caught some commentators off balance as
the decision was being read out. TV news reporters
reporting from in front of the Supreme Court's
building, and getting quick bullet points from
inside the court's chamber on the court's view on
"mandates", initially reported the court had ruled
the crucial part of the law was unconstitutional.
They then had to do an abrupt volte face, live on
TV, when the other shoe dropped from the next
lines of Chief Justice Roberts' reading of the
majority opinion.
Unlike a media-obsessed
White House and Congress, the Supreme Court hews
to a much earlier style of decision-making and
relationship with the press. It allows no TV
cameras into the chamber and seats are limited to
a few hundred intrepid early risers who, this time
certainly, were lined up at sunrise to be able to
gain entry to hear the historic ruling first hand.
This unanticipated majority opinion by
five justices (there were four dissenters)
included the four more liberal justices who were
expected to support the law, but the five also
included the court's putatively
conservative-leaning chief justice, John Roberts.
Roberts sided with the court's four liberal
justices - Stephen Breyer, Ruth Bader Ginsburg,
Elena Kagan and Sonia Sotomayor - to form the 5-4
majority.
In reading the majority opinion,
Roberts even quoted that famous aphorism from
"Founding Father" Benjamin Franklin, who had been
in on both the writing of the Declaration of
Independence and the Constitution, that nothing
was as certain in life as death and taxes. This
shout out to the Constitution's writers and their
original intent (a standard rallying cry for
conservatives) was clearly aimed at giving a
deeper historical context to this court ruling in
clinching the point that the right to tax was the
key to the whole argument.
The ruling did
put some limits on the law's planned expansion of
the Medicaid insurance programme for the poor, a
programme that is a joint effort of the federal
government and states. The decision said the US
government cannot threaten to withhold a state's
entire Medicaid allotment if it doesn't
participate in the expansion.
This ruling
will have still-to-be-fully-understood
implications on the now-unfolding presidential
race - but it is already under close examination
by every politician, political analyst, pollster,
journalist, seer, soothsayer, hospital
administrator and tax accountant in America. One
thing is clear already, however. In the initial
evaluations, this ruling serves as a massive boost
for the Obama administration as it "girds up its
loins" for the remaining months of the re-election
campaign. Imagine by contrast how it would already
be spun if the court had ruled otherwise - and
visualise the funereal atmosphere, the renting of
garments and the donning of sack cloth and ashes
that would be the required attire at Obama's
Chicago campaign headquarters.
One
particular irony of the day's decision was lost on
few observers - certainly not by incredulous
Republican politicians. As a senator, Obama had
voted against confirmation of John Roberts as
chief justice when George W Bush had appointed
him. Regardless, Roberts proved to be the deciding
vote in favour of Obama's core presidential
achievement.
Over time, this one may even
prove to be much worse for conservative
politicians than when their expectations were
quashed back in the Eisenhower administration. Ike
had appointed California governor Earl Warren as
chief justice with the expectation Warren would
prove to be a restrained, almost quiescent jurist
- rather than the activist leader of the so-called
Warren court he became. That court ushered in the
civil rights revolution with key decisions that
began with the Brown vs Board of Education ruling
that outlawed school segregation.
Speaking
immediately after the import of the ruling was
becoming clearer, former Democratic Senate
Majority Leader Tom Daschle, a key proponent and
advocate for this measure when he was in the
Senate, told the media he was overjoyed. Daschle
said now we "can implement, can go forward with
full speed," even though "the politics will
continue to play out and (there will be) all kinds
of ads" against the law.
Within an hour of
the court's decision, Republican presidential
candidate Mitt Romney was at his Washington DC
campaign offices, speaking to reporters and
television cameras of his continuing opposition to
the law - and now the court's ruling. Romney
promised that, if elected, he would push to repeal
that healthcare law and he repeated some of his
now familiar - and not entirely true - charges
that this law represents a major new federal
intrusion into the details of an individual's
healthcare, it imposes cuts on Medicare (the
government's health care plan for the elderly),
and rips up the ordinary citizens' connections to
their family physician - if they could afford one.
Romney then tried to minimise the effect of this
ruling for his campaign, arguing the court's
decision only said the law was constitutional, not
that it was good law or right for the nation.
Not surprisingly, Obama then spoke to
White House reporters just a few minutes later. He
applauded the decision and then described the main
features of the law and how they will - over the
next several years - come to ensure broader, less
expensive coverage of healthcare insurance to most
citizens, prevent insurance companies from
imposing lifetime cost limits on coverage or
refusing to accept new people to be insured
because of pre-existing conditions. From Obama's
corner it was a win, all around.
With this
ruling, a key dynamic of the presidential race has
abruptly changed - the distinction between the two
candidates is now crisply drawn, voters will now
reach their conclusions about which candidate is
in their corner. It also flushes Romney out into
the open to come up with a cogent - detailed -
explanation of how he could possibly sponsor a
measure in Massachusetts while he was governor
that was remarkably similar to "Obamacare", even
as he totally opposes this federal equivalent now.
Undoubtedly, too, Democrats will be chivvying him
everywhere to explain - also in detail - what he
would replace Obamacare with, should he actually
end up in the White House.
On the other
hand, the Obama campaign now has to embrace
acknowledging that this mandated penalty for those
who refuse to sign up for health insurance (to
cover the costs of supporting offsets for their
healthcare costs downstream) is actually a tax -
and one that will probably end up being levied
more against middle class families than anybody
else. In this, Obama's problem is that this is
precisely what he had said he would not support
when he first ran for the presidency. We'll start
to hear a great deal about "foolish consistency"
and the "hobgoblins of small minds" from
commentators on this, no doubt.
Nonetheless, watch for the Obama campaign
to use this new judicial lease of life to heighten
its strategy of appealing to niche groups of
voters and winning them away from Republican
temptations. As the various provisions of the
Affordable Care Act begin to take effect or come
closer to doing so, Obama is going to be able to
point to all those low-income families who no
longer have "to sell the farm" to pay for
grandma's surgery, to young people up to age 26
who can now remain under their parents' healthcare
coverage, to people with difficult medical
conditions who will no longer be denied healthcare
insurance, and to people who will never find that
their coverage stops just as their health care
costs start to soar with a difficult-to-treat
disease or condition.
Also, watch for an
army of Obama surrogates who will begin chanting
something very much like "Where's your plan Mitt,
where's the plan?" every time Romney attacks
Obamacare - and there will be echoes of this call
even during the face-to-face presidential and vice
presidential debates. Hey, there's going to be
something to write about during this election
campaign after all! DM
This
article is run courtesy of Daily Maverick. To
visit their site, please click here.
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