Thoughts on the ACA Ruling

Luke Wachob

Emotions have been running high over health care for several years

now. The constitutional challenge to the Affordable Care Act

heightened those emotions even further, threatening to plunge the

country into an angry ocean of angst-ridden Tweets. Yesterday, the Supreme

Court affirmed the “Obamacare” Patient Protection and Affordable Care

Act in a 5-4 ruling, only placing limits on its provisions dealing

with Medicaid funds. As of this morning, the world still spins.

I don’t think I have the expertise to bash the Court on a complicated

issue like ACA, nor could I give commentary on the entire case. Don’t

use me as your news source! Instead here are the three most compelling aspects of today’s ruling. I’ll also test if we can blame this on 9/11, because that’s what American politics is all about.

1)      The individual mandate violates the Constitution, but it doesn’t.

Anyone waiting for the decision to come out yesterday noticed that CNN and

Fox News both initially reported that the mandate had been struck

down. This error is surprising from major outlets, but not too

surprising when analyzing the decision: the Court found that the

Commerce Clause cannot be used to mandate that someone health insurance.

This is the decision libertarians were looking for. However, the Court

bought the government’s back-up-to-the-back-up-argument* that the

mandate is Constitutional because it’s actually just a tax. Of course,

President Obama made clear many times during the bill’s passage that

it was not a tax, and this shifting of the law’s designation to fit

the convenience of the administration (it’s not a tax when we need the

public to support it, it is a tax when we need the Court to uphold it)

can only upset anyone with faith in democracy.  It certainly seems

unfair, anyway, that the White House was able to call it a mandate to

get it through Congress, then call it a tax to get it through the

Court. But still, today’s ruling is not as bad as a ruling under the

Commerce Clause may have been.

2)      The Court’s only ‘partisan’ when it disagrees with you

Where the individual judges ended up is interesting. Chief Justice

John Roberts joined the liberal justices in upholding the mandate as a

tax, while swing-vote Anthony Kennedy** enthusiastically joined the

conservatives. Had the 5-4 split occurred with Roberts and Kennedy on

opposite sides, the Internet would’ve exploded with cries of

partisanship. But which side would have been acting in a partisan

manner and which one would’ve been objectively applying the

Constitution? We’d never settle that question. This ruling once again

shows that the Court, while clearly sensitive to both public opinion

and partisan politics, is the least political branch of the three***.

The fact that the ruling was predicted by so few, and that the

justices fell on sides of the issue that experts didn’t anticipate,

shows that public anger aimed at the Court is based in a lot of

ignorance. Let’s not lose the lesson here: You can disagree with the Court, but don’t hate and don’t assume you know what they’re thinking.

3)      Can Congress give a private entity the power to tax?

The liberal enthusiasm for this decision is disheartening to me. ACA

is more corporate welfare than health care. Does the bill secure

universal coverage? No. But it is a handy subsidy for health insurance

companies. The Court’s ruling that ACA is constitutional seems to

suggest that the government may tell citizens: “buy this product, or

pay this penalty.” I’ve been lectured on corporate greed and the

cronyism that influences national policy from liberals for years, and

yet they mostly cheer for a bill that makes it illegal to not buy into

that corporate system. This ruling marries big business and government in a much more profound, unprecedented, and impactful way than Citizen’s United*****. Occupy should be flipping out right now!!

4)      So, can we blame this on 9/11?

Conservatives and libertarians are no doubt most disappointed with

Chief Justice John Roberts. That a conservative would affirm ACA is

surprising – indeed, as surprising as a conservative supporting the

Patriot Act, or national education policy, or unfunded mandates to the

states. I list those examples for a reason: we may not have had

today’s decision if not for George W. Bush. When faced with open seats on the bench, President Bush needed a conservative who would affirm the Bush Administration’s War on Terror policies. Roberts was that candidate. Had Bush been a true conservative, or had we not undertaken the War on Terror, or had other conservatives not sold out on their principles to either be a teammate or score patriotism points post-9/11 with Constitutional travesties like the Patriot Act, John Roberts likely would not have been selected. A different conservative probably would have joined Thomas, Scalia, Alito, and Kennedy in viewing the mandate as distinct from a tax. So, yes, we can blame this on 9/11.

* The first back-up argument was that the law was ‘necessary and

proper’ which the Court also struck down – presumably while chuckling

softly to themselves.

** Kennedy has been a libertarian's hero during this process. In oral

arguments, he said that the mandate fundamentally changes the

relationship between the individual and the government, and in today’s

dissent he accuses the majority of “a vast judicial overreaching”. My

heart sank when I heard the ruling, but Kennedy’s opening statement in the dissent,

“In our view, the act before us is invalid in its entirety”, cheered

me back up some. Somebody gets it.

*** Four, if you count the administrative bureaucracy, and five, if you count the military independently.

**** Interesting side note on Citizen’s United: According to a Reason article today, less than 1% of money donated to Super PACs has been from publically traded corporations. 86% has come from individuals, who have been making unlimited political contributions since 1976.