Friday, June 29, 2012

The Roberts Court and the health care law victory

The Roberts Court upheld the Affordable Care Act (ACA) on a 5-4 vote. It appears that Chief Justice John Roberts had aligned with the four anti-ACA Justices until pretty much the last minute, when he switched to the pro-ACA majority. Since this is a highly political Court, with Antonin Scalia and Clarence Thomas engaging in blatantly partisan Republican activities, it's a safe assumption that the political context influenced Roberts' surprise switch. Most Court followers seemed to have expected Justice Anthony Kennedy to be the swing vote.

Here are two reports from the online edition of The Young Turks. Supreme Court Upholds Obamacare - Conservative Reaction Absurd 06/28/2012:

Why Did Justice Roberts Rule In Favor Of Obamacare? 06/28/2012:

There is a huge policy problem with the individual mandate in the absence of a public option. The ACA gives private insurance companies an expanded "captive audience" of customers, partially subsidized by public funds. But the insurers also have considerable latitude on deductibles. Since most younger people don't need several thousand dollars worth of health care services in a given year, literally millions of people could find themselves paying thousands of dollars per year for insurance that pays little or nothing for the actual health care services they access.

With a public option allowing people to buy into something like Medicare, that problem would be considerably mitigated. It would be a substantial practical control on private insurers, as well, because they would be competing with a public option and would have to prove their claims that they offer superior service to avoid losing a valuable segment of the market to the public option.

In fact, progressives have seen a public option as a substantial step toward single-payer or "Medicare for all", because with considerably lower overhead costs than private insurers, a public option would show itself to be a superior product for individual consumers.

And for the ACA to work in an optimal way, it would have to operate under both Democratic and Republican administrations. Once the law comes fully into effect in 2014, many of the provisions will be popular enough that the Republicans could find them impossible to alter. If - and this is a big if - the Democrats can rouse themselves to defend them.

But a Republican President can be counted on to allow private insurers maximum latitude to raise prices and restrict services. Which makes the lack of a public option a continuing vulnerability.

The repercussions of the decision will be a big test for President Obama. The Republicans initially doubled down on repealing the ACA. There is reason to doubt that Presidential candidate Willard Romney will want to make that a major campaign theme, since most of the individual aspects of the law are popular to extremely popular. Like the provision that allows young people to stay on their parents' insurance until age 26. Notably, that's a provision that has already come into effect. Obama's policy timidity led him to have most of the benefits' effective date be postponed to 2014.

The test for Obama now is how willing he is to campaign on the positive and popular benefits of the ACA. It makes all kinds of conventional political sense. It's not at all an unconventional idea to campaign on your own popular accomplishments. Yet Obama has been strikingly reticent to advertise the benefits of the ACA until now. But he also seems to see the ACA as a major legacy accomplishment that he really wants to keep. So there's hope that he will forefront the benefits of the ACA in the campaign.

He seems termpermentally incapable of campaigning along the lines of Franklin Roosevelt in 1936, opposing the "economic royalists" and declaring "I welcome their hatred." Obama would rather welcome the hatred of Democratic progressives. But if he would substitute defending the ACA for talking about how he wants to reduce the deficit and reform entitlements - the latter meaning cutting benefits for Social Security and Medicare - that would be a big improvement in his campaigning.

Digby recognizes the Court decision has a victory for the Administration and the ACA. But she's rightly restraining her enthusiasm for Roberts' defection from the Court's other rightists on the ACA. In John Roberts' Long March Hullabaloo 06/28/2012, she writes that it's likely that Roberts was worried that a 5/4 decision against the ACA, coming on top of Citizen's United, could seriously discredit the Court. But she cautions that Roberts is on board with the kind of conservative revolution in the law that Scalia and Thomas have been pressing during their Court service. She suspects that the lack of support from the health care industry for overturning the individual mandate which promises to boost their profits considerably weighed very heavily in his choice:

Unlike his right wing brethren on the Court, it would appear that Roberts is ideological to the extent that ideology serves money. Most of the time that makes a majority with Thomas, Alito, Scalia and Kennedy. In this case, due to the nature of the law and its goals, it swung the other way. But Roberts wasn't being inconsistent. He delivered.

The Supreme Court is where the real conservative revolution --- the corporate revolution --- is going to be taking place over the next several years. Today Chief Justice Roberts went a long way toward ensuring that it will have the legitimacy to get that done.

I'll be very anxious to see how striking down the mandate under the commerce clause plays out --- I suspect Roberts is being very clever there. And, as I have always feared, the Medicaid expansion is the weak link. Everyone seems to think that the wingnut Governors won't be able to resist the free money, but they've been pretty willing to forego filthy Planned Parenthood and Unemployment Insurance cash, so I'm not totally convinced. Perhaps more importantly, the mechanism that Roberts came up with (signed on to by 7 justices) is one that could have a very serious effect on the future ability of the federal government to manage national social programs. So we'll have to see what the reverberations will be down the road.

At this moment, on this day, I'm not inclined to carp too much. It happens to be a law that will extend health insurance to some number of people who wouldn't have been able to get it before and that's a big fucking deal. But there's also no doubt in my mind that it came at a price.
Roberts, she writes, is "playing a very long game". And his decision on the ACA doesn't change that.

The four-Justicte conservative dissent is stunning in its radical position. As Paul Campos said yesterday on the broadcast cable version of The Young Turks, its reasoning that the ACA exceeded Congress' powers under the Constitution's Commerce Clause is a return to the anti-New Deal position of the Court that FDR called the "nine old men". Campos writes about the decision in Don’t cheer John Roberts Salon 06/28/2012:

Who exactly is John Roberts, and why did he get to decide what sort of healthcare system the world’s richest and most powerful nation should have? Roberts is no more and no less than a politically well-connected Washington, D.C., lawyer. After graduating from Harvard Law School he had exactly the kind of career that such people have: He rotated between prestigious Republican-controlled government positions and a lucrative K Street (technically just south of K Street) private law practice, until he had the good luck to become a relatively young and very telegenic federal judge, just two years before George W. Bush would find himself in need of a new chief justice.

Roberts, in other words, happened to be in the right place at the right time. On a Supreme Court whose other members are three hardcore movement conservatives, and four squashy technocratic centrists (the latter are what now count as “liberals” in American judicial politics), the ever-so-slightly less than completely reliable conservatism of Roberts and Anthony Kennedy makes them the Deciders in regard to all sorts of important issues, and in some ways more powerful political figures than Barack Obama, at least in regard to questions such as what sort of healthcare system America should have.
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