Rapid Response: ACA

The following initially appeared on Yi! News.

Thursday’s Supreme Court decision on the Patient Protection and Affordable Care Act (aka Obamacare) was viewed initially as a stunning victory for progressives broadly and the Obama administration and congressional Democrats specifically. (Never mind the wrong results reported by two of the nation’s biggest news outlets that were too lazy to read more than the first sentence of the ruling.)

The court’s 5-4 decision upholding the Act represented the biggest victory for liberals since LBJ’s Great Society programs became law. Every Democratic administration attempted to achieve universal health care coverage. Despite possessing skilled politicos like Johnson and Bill Clinton, they had roundly failed…until now. The Affordable Care Act follows the legacy of the New Deal and Great Society in building the foundation of federally funded general welfare programs; Obama’s place as one of the great Democratic presidents, barring catastrophe, is secure. This sentiment seems to be echoed in pop culture and Hollywood.

Yet, save Obama’s reputation among his ideological colleagues, little else can be definitively ascertained about the court ruling’s implications. This is because, in crafting the majority’s opinion, Chief Justice Roberts (a George W. Bush appointee and staunch conservative) threw us a hell of a curve ball. The pundits are still scratching their heads, with otherwise likeminded columnists and legal experts from both sides disagreeing about whether or not this was a good ruling for their cause.

Yi! News’ legal scholars will touch more on the specifics, but essentially, the decision boiled down to one crucial question: can the government compel individuals to purchase a product under the jurisdiction of the Commerce Clause? (I’ll ignore the Medicaid piece of the Act, as the justices ruled 7-2 in a fairly cut and dry decision.) Conservatives wanted Roberts to rule “no,” and liberals wanted him to rule “yes.”

Instead, Roberts gave a more nuanced answer. The Commerce Clause, he argued, does not give government authority to regulate inaction (i.e. not buying insurance). However, the government can levy a tax on individuals; while nominally a penalty, as Roberts read the Act, the fine for not buying insurance was more similar to a tax. Thus in one swoop, the conservative Chief Justice simultaneously allowed for the passage of liberals’ dream legislation while also impeding their ability to continue to use the Commerce Clause as a catch-all excuse for government expansion. Respected political analyst Sean Trende likened it to Marbury v. Madison, in which then-president elect Thomas Jefferson got punked by his arch nemesis cousin.

The National Review Online, a conservative mouthpiece, was furious. George Will, one of the most widely known and respected conservative columnists, was elated. Ezra Klein, the voice of urban liberals, was furious (he’s now kinda indifferent). Joan Walsh of Salon, a leading progressive publication, was elated. Got it?

Politically, despite what party cheerleaders have said, I believe this is a wash. Conservatives, pointing to the $1 million in online donations Mitt Romney received shortly after the ruling, see this as a base-rousing decision that will increase turnout. This is nonsense. First, the Republican base has already been shown to be tremendously interested in this election; the ruling won’t change it markedly. Second, any marginal increase in conservative turnout will likely be matched by better turnout among liberals. Remember: this president did something that Franklin Delano Roosevelt couldn’t do!

The policy implications are likewise muddy. The law may stay as-is, states will begin setting up the insurance exchanges necessary for the law’s execution, and we’ll gradually see all of the law take effect in the next few years. But there are a number of legal issues to still sort out here, and conservatives maintain their right to challenge the law in a few ways: they can refuse to setup the exchanges, and they can sue the government for levying a tax not authorized by the Constitution. Furthermore, if Mitt Romney wins the presidential election, he could repeal the Act through reconciliation. (For what it’s worth, I’d give Romney about a 45 percent chance of victory as of today.)

Finally, while Roberts hopes to have played the long game in his ruling in establishing more conservative judicial precedent, precedent isn’t binding. President Obama in his second term could appoint as many as three justices, who will surely have their own interpretation of Roberts’ decision on the Commerce Clause and other major state vs. citizen issues.

So enjoy the excitement while it lasts, and ignore any confident predictions about what Thursday’s decision means in the long run, unless of course they’re made by Ryan Byrnes, the Midnight Man, or Jordan O’Donnell.

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