Sustaining Obamacare

Except for one minor provision, the Supreme Court on June 28^th upheld President Obama’s signature Affordable Care Act (ACA), as Linda Greenhouse had predicted, with Chief Justice Roberts writing the opinion of the court and providing the swing 5-4 vote.  But Roberts’ opinion is so convoluted that both CNN and Fox initially reported that ACA had been ruled unconstitutional.

Most of the case concerned the constitutionality of the Act’s individual mandate that will require most people lacking health care insurance to pay a penalty added to their federal taxes and collected by the Internal Revenue Service.  Roberts’ opinion, part of which represents the opinion of the Court and part his own (minority) opinion, starts off by denying that the mandate is justified by the Commerce Clause of the Constitution since not buying insurance is not “commerce”—and shouldn’t be because then Congress could require everyone to buy broccoli to improve their health.  The opinion then goes on to deny that the individual mandate is justified by the Constitution’s Necessary and Proper Clause since even if it’s a “necessary” part of the ACA, it is not a “proper” one.

Finally, after 30 tedious pages during which he apparently exceeded the attention span of CNN and Fox, Roberts gets around to Congress’ power under the Constitution to “lay and collect Taxes.”  On page 44, he concludes (for the Court) that what the ACA describes as a “penalty” is really a tax and within Congress’ power to enact and is therefore constitutional.  But previously, on page 15, while again writing for the Court, Roberts dismisses the federal Anti-Injunction Act, which forbids lawsuits like this one “for the purpose of restraining the assessment or collection of any tax,” on the grounds that the penalty is really a “penalty” and not a “tax.”

Justice Ginsburg, whose opinion follows that of the Chief Justice, argues that all parts of the ACA are constitutional as written, particularly under the Commerce Clause.

The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s.  In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors.  Beyond question, Congress could have adopted a similar scheme for health care.  Congress chose, instead, to preserve a central role for private insurers and state governments.  According to the Chief Justice, the Commerce Clause does not permit that preservation.  This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

Roberts’ “crabbed reading of the Commerce Clause,” writes Ginsburg, “should not have staying power.”  I believe there are good reasons why it won’t.  Roberts’ many pages describing what portions of the Constitution do not support the ACA’s individual mandate are actually irrelevant to the Court’s holding that the mandate is supported by the taxing power.  As such they’re considered (in legal lingo) “dicta” which, unlike the Court’s holdings, do not represent precedents for subsequent decisions.

Furthermore, the Commerce Clause is too important to the Constitution and US history to suffer a crabbed interpretation.  The federal government’s supremacy in interstate commerce was arguably the founders’ number one priority in establishing the Constitution to replace the Articles of Confederation and is arguably the number one reason why in early in the 20^th century the US became the economic powerhouse of the world.  Europeans have recently tried to create the economic equivalent of the US market with their Common Market.  The Common Market’s flaw, as we see today, is the lack of a single, strong government to regulate it.

The only other opinion in the ACA case except for a short solo dissent by Justice Thomas is a bizarre joint dissent signed by Justices Scalia, Kennedy, Thomas and Alito asserting that the ACA is entirely unconstitutional.  It’s as if the opinion of four of the Court’s five conservative choirboys was designed to be a majority per curiam opinion, an anonymously written opinion “by the court.”

While it would have been a scandalous departure from Supreme Court practice if a 5-4 opinion striking down the landmark ACA had been written per curiam, that may have been exactly what the four anticipated when their opinion was written.  In a follow-up column, Linda Greenhouse suggests that Roberts’ vote affirming ACA may have been a last-minute switch that left his four conservative colleagues in the minority.  Minority dissents are by definition not by the court, so without Roberts’ support what may have been intended as an anonymously written majority opinion became an anonymously written minority opinion.

In the end, the Supreme Court’s validation of the most significant piece of social legislation since Medicare and Medicaid ultimately depended on a halting, awkward and inconsistent opinion of the Chief Justice that eventually found its way to a place in the Constitution that sheltered the individual mandate and saved the Act.  Although the opinion did not persuade any of his fellow-conservatives, not even the supposed swing-voter Justice Kennedy, Roberts has received praise for a courageous vote.  I’m not persuaded that he deserves it.  After donning the mask of someone who respects legal precedent and tradition for his Senate confirmation hearings, he led a coalition of five of the nine justices that ravaged the judicial landscape and in its most notable case destroyed a century of campaign finance reform.  Its clownish behavior at several days of argument for and against the ACA changed public expectation that the Court would surely uphold the Act to one of expectation that it well might not.

And who knows?  Perhaps that’s where it was going, but Roberts changed his vote.  Perhaps he worried about his place in history.  Since Bush v. Gore, when the candidate with the majority of the people’s votes lost the Presidency by one vote on the Supreme Court, the public has soured on the Court that it once respected, and Roberts has done nothing to restore that respect.  Until June 28^th, maybe.  We’ll see.

Did Democrats Lose the 2102 Election in Wisconsin?

In the Wisconsin gubernatorial recall election in early June, Republican Governor Scott Walker easily won the right to continue in office.  Democrats cited his outsized funding advantage from Super PACS, but turnout was high on both sides, and many voters including those from union families apparently approved of Walker’s stripping the (mostly) teachers’ unions of collective bargaining rights or disapproved of the use of recall to decide the issue.

What lessons might we take?

One is that popular mass movements should not waste their energies on political campaigns, which in this case took the Occupy Wisconsin movement that inspired Occupy Wall Street many months later and subjected it to “corporate co-optation by the Democratic Party.”  The Democratic candidate was the same as in the regular election in 2010 who lost a second time to Walker by the same margin.

A second is that there is no way that Republicans backed by Super PACS are not going to out-spend Democrats by large margins.  If the Democrats are to win in November, it will be by addressing the concerns of undecided voters while persuading minorities and unregistered millennials that voting is worth their while.

Finding the means through executive action to further the purpose of the stalled DREAM Act in Congress by suspending deportation of illegal immigrants brought to this country as youths and making them eligible for work permits was a very popular move by Obama.  If now he could find the executive means to alleviate the harshly discriminatory terms of student loans by, say, lowering the cap on maximum loan payments or broadening the definition of loans to which the cap applies, he might persuade those who bear the burden of one trillion dollars of student debt to show up on election day while also stimulating the economy.

Addressing the concerns of undecided voters is more difficult.  I met one while campaigning recently who favored Obama in 2008 but was undecided about 2012.  A man in his forties, he’d had a job since he was 12 and made sure that he had one now with good insurance to provide for his wife and children and himself.  He was negative about unemployment insurance because, he said (speaking from his own experience), there are jobs out there for people who go after them.  He was also dead set against the Affordable Care Act (ACA), aka Obamacare, which he was sure he would end up paying for.

Virginia psychologist Jonathan Haidt, who maintains that liberals and conservatives don’t understand each other, singles out the Tea Partiers’ concern for justice, which Haidt calls karma—if you work hard, you should be rewarded; if you duff off or screw up, you should suffer the consequences.  The Tea Party movement sprang to life when the government bailed out the banks that created their own (and our) problems, and then, according to Rick Santelli on CNBC, started “promoting bad behavior” among mortgage holders: “How many of you people want to pay for your neighbors’ mortgage that has an extra bathroom and can’t pay their bills?”

As my undecided voter put it, if someone tells you that you can afford a mortgage and you don’t do your own math, who can you blame but yourself when it turns out that you can’t afford it?

In articles asserting that white working people with jobs increasingly identify themselves as Republicans, Haidt claims that Democrats promise to care for the elderly, young, students, the poor and the middle class, “but most Americans don’t want to live in a nation based primarily on caring.  That’s what families are for.”  In fact, almost half of all households receive government benefits based on 2010 statistics, but most of the benefits go to the elderly (65 or older—53 percent), disabled (another 20 percent) or members of non-elderly, non-disabled working households (18 percent).  Only 9 percent goes to non-elderly, non-disabled people without jobs.

The 9 percent, of course, includes unemployment insurance for people who have lost their jobs in the recession.  The economy shed millions of jobs after the housing and credit bubbles burst, and not everyone who lost a job was going to find a new one.  Unemployment insurance, which dates back to FDR’s original Social Security Act of 1935, is considered a countercyclical automatic stabilizer of the economy.  FDR hated doling out money or even paying people for government work as much as anyone, but he knew that the economy couldn’t recover when so many consumers were not spending money because they weren’t earning any.

What Democrats really stand for—or should—is first and foremost the restoring of an economy based on full production and full employment such as we last saw in the Clinton years.  While taxpayer-funded programs like unemployment insurance may be appropriate policies to achieve such an economy, Democrats need to listen to the concerns of working voters who don’t like paying for others they think of as free riders and explain their reasons if they want to win their votes.

Democrats need also to explain the purpose of the ACA, which is to provide taxpayer- subsidized, community-rated, private health insurance to citizens and legally resident aliens who don’t obtain such insurance through employment and don’t qualify for Medicaid.  Community-rated is what allows people with current health issues to be covered and requires people without them to participate.  But as Princeton’s Uwe Reinhardt points out, ACA is just copying employment-based health insurance, which is also taxpayer-subsidized and community-rated.

ACA is polling terribly right now, although the Massachusetts Act, aka Romneycare, on which ACA is based seems to be quite popular among the residents of that state.  I suspect that if it survives to 2014, when most of its provisions kick in, ACA will in time join Social Security and Medicare as programs the public doesn’t want to give up.