Saturday, June 30, 2012

Political Implications of the Supreme Court Decision on Health Reform

Chief Justice Roberts is very smart, and quite possibly pretty sly as well. I have been reading through the Supreme Court's landmark decision on health reform (which like many others, I predicted wrongly). But after also reading many commentaries, including Charles Krauthammer's viewpoint on "Why Roberts Did It", and then seeing the reactions to the ruling I am beginning to see some Machiavellian possibilities in Chief Justice Robert's actions. I agree that he was looking to salvage the reputation of the court as a neutral arbiter, and that he is not a fan of the President nor the Affordable Care Act (ACA). But he may have found a way to appear fair, while also trying to do political damage to the legislation's supporters.

Regardless of the facts about the benefits or costs of health reform, a majority of Americans still favor repeal of the legislation. Those numbers rose in the run up to the 2010 elections and helped provide the shellacking the President received in the mid-term elections. The fact that the health reform law remains in place may end up hurting the president's chances for re-election more than helping them. Chief Justice Roberts certainly knows this is a possibility and could have slyly saved reform, only to ultimately try to ensure its death. I believe his hope is that the political process will undo the legislation. In his opinion he said, "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices." [emphasis mine] Hearkening back to Justice Oliver Wendell Holmes and his philosophy of judicial restraint, who once said, "If my fellow citizens want to go to Hell I will help them. It’s my job." Roberts is basically telling the people to choose a new leader, and then crafting a decision that is sure to inflame the Republican base.

But regardless of the political implications, there is much in the rulings for conservatives to be quite happy about. The court rejected that the ACA is constitutional on the basis of the commerce clause, as proponents insisted. By writing the majority opinion with the liberals, and joining with the dissent of the conservatives on the commerce clause, the court has put a serious roadblock in front of government expansion. The limitation of Congressional power under the commerce clause imposed by the court is likely to have some far-reaching consequences. This marked the first time the court has put such a limiting principle on the commerce clause. As Tom Socca said, "By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law — while joining the Republican wing to gut the Commerce Clause."

So instead of being based on the commerce clause, the court found that the individual mandate to purchase insurance falls under Congress’s authority to tax. The opinion reads, "The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read." So according to the Supreme Court, the ACA constitutes a tax, which the President had repeatedly insisted it was not, despite this being one of the arguments his lawyer had argued before the court. It is now considered a tax according to the highest court in the land. This alone is the reason it has passed constitutional muster. And this will create a huge political problem for the President and his allies in Congress. Had the court ruled the mandate unconstitutional as I had expected, yet left the rest of the act intact, it would have effectively taken this issue off the table for the election. Roberts has allowed the law to stand while deftly turning it into a political weapon, and then quietly imposed serious limitations on regulatory powers under the commerce clause. All while looking like a hero to his strongest detractors.

And the court also ruled that the law’s expansion of Medicaid was unconstitutional. As Jonathan Cohn points out, "The justices didn’t strike down the Medicaid expansion altogether. But they insisted that states choosing not to expand coverage give up only the money that would have gone to covering the new populations. Those states would remain eligible for the funds that they already get, to cover people who already qualify for Medicaid under the old guidelines." This will certainly cause many of the 26 states who opposed the law to decline expanding their Medicaid program. Poor people who live in a state that refuses to expand its Medicaid program will find themselves boxed in, unable to obtain either Medicaid or subsidies for health insurance. This could become a very serious problem in maintaining support over the long run for the legislation.

Chief Justice Roberts has made clear that the future of healthcare will be determined at the ballot box. He undercut the main argument of expanding government power by using the commerce clause, and the court has now deemed health reform a tax, which is sure to drive the President's opponents to the polls (as well as open their wallets as the Republican Party brought in $4.2 million on Thursday alone from 42,000 donors). This will likely have a greater impact in certain congressional races, and perhaps won't affect the presidential outcome much. Let's face it, the economy is the number one issue this November, and health reform is not the main event. However, the budget and federal debt will certainly play into it, and I don't see much political upside for the President from the ruling declaring the mandate a tax. Roberts seems to have dealt with this issue in such a way that it is not such a clear cut victory for the President and supporters of the ACA.