Among the growing number of stories speculating on the potential outcomes of the Supreme Court’s decision on the constitutionality of the Affordable Care Act’s mandates and coverage expansion, we’re also seeing articles like this — Supporters Slow to Grasp Health Law’s Legal Risks — by Peter Baker of the New York Times. Baker suggests that the ACA’s defenders, and particularly the Obama Administration’s lawyers, were too slow in realizing the legal risks facing the ACA. That may be true, but not for the reasons often suggested.
The unspoken premise of this line of argument has two parts. One is that when properly framed, the ACA is ultimately constitutional, so the ACA would be easier to defend if we just explained it clearly and use the better theory. Argue the tax angle, we’re told, and you win. I’m sympathetic to making a better argument, though I think it’s not that simple to explain the role of revenues in a privatized insurance scheme in the context of seeking universal coverage. And it’s not an argument conservatives like.
But I also suspect that if that premise — just make the better argument — were true, it wouldn’t matter, because the second part of the argument is that once we’ve framed and explained the ACA “correctly,” the Supreme Court justices will logically apply established precedents and conclude the Act is constitutional, because logic and precedent demand it. It’s this second part I find doubtful.
It’s not news that judges, and particularly appellate and Supreme Court Justices, tend to reflect the ideological tendencies of those who appoint them, and later, of the ideology they identify with. That’s a main reason for voting for one candidate/party over another, given our system. We’ve had more “liberal” courts in the past that could be expected to expand individual liberties and equal protection of the law; and they were more likely to approve government efforts to regulate the economy in furtherance of some broader public interest. But those days are gone.
For the last decade or more, we’ve had a Court focused on limiting individual rights against corporate and government abuse and much less willing to allow government to act for the common good if it violates the current ideological support for corporate or the accepted government interests. It is not, as George Will opined on This Week today, that this Court is simply applying the inherent constitutional concept of “limited government.” That’s a pretty selective interpretation, because this Court has shown appalling indifference to a powerful federal government mistreating people, especially those called “terrorists.” They’ve allowed a massive security state to operate in secret and the Executive’s power to expand with few limits. They’re okay with a government spying on everyone, and preventing individuals from seeking relief through the courts. Corporations are shielded from shareholders and class actions and then given the rights of citizens, but now allowed to undermine democracy through unlimited spending. This Court majority is lots of things, but a defender of “limited government” is not one of them.
These kinds of decisions have repeatedly come without the slightest regard for long established precedent or legal reasoning. It’s just whatever the current dominant ideology demands. They’re more selective about when to express concerns about “liberty” and “individual rights,” so the decision turns on whatever the current extreme devolution of conservatism demands at the moment, and that’s not as predictable as it might seem. Very few foresaw how radical and vindictive they were, or how quickly the current GOP would move to reverse the last 80 years of governance, though historians of the 1930s might have told us.
If we have a court dominated by four strong and openly conservative ideologues who are intent on both shackling and harnessing government to further whatever agenda they have, and a fifth who seems malleable, we should expect cases with strong ideological implications to be decided consistent with their ideological bent. I supposed there’s something ultimately “democratic” about that in the long run — when “we’re all dead” — even if it undermines the image Americans would like to have of how the Supreme Court decides cases.
So what might the Supreme Court do next week? Better to ask, what’s the current agenda? If Mitt Romney had somehow been elected President in 2008, I doubt there would be any stories this week about whether the Supreme Court would declare the newly enacted national RomneyCare unconstitutional. A few disgruntled progressives would be arguing that it was wrong to require individuals to purchase private insurance and inexcusable to force them to funnel trillions in health care dollars through private insurers, allowing them to manipulate coverage and take their cut, just to pay for health care. But these “liberal” arguments would, I suspect, have had no appeal to the same conservative majority that may strike down the same system when proposed by Obama and Democrats.
What next? The Republican nominee claims he supports Paul Ryan’s “premium support” mechanism for transforming Medicare from a government-sponsored health insurance program to one in which retirees choose private insurance. The ultimate goal is to transform all of Medicare to a system that functions through private insurers and retains the government only to provide whatever subsidies to private insurers the GOP is forced to fund to get reelected. So I anticipate a decision on the ACA that, even if it strikes down the individual mandate and related provisions, still leaves open the door to declare that whatever the GOP decides to do, it will be just fine constitutionally. And right now, they claim to want a system that funnels trillions through private insurers, but without any government obligation to make sure that actually translates to universal coverage or acceptable health care.