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By now it seems difficult for many Americans to remember a time when health policy did not polarize. For much of the current presidential term, health care has been at, or near, the top of the political agenda, engendering strong opinions across the ideological spectrum, and fiercely further dividing Democrat from Republican. The recent headlines seem to suggest that, with the landmark ruling from the Supreme Court, the end of this battle is nigh. While the decision to uphold most of the legislation as constitutional gives its proponents some breathing room, however, the larger conflict over the shape of the nation’s health care “system”—or lack thereof—will continue for years to come.
‘ObamaRomneycare’
The “marquee” items of the Affordable Care Act (ACA)—today better known as Obamacare—derive from Republican precincts. The individual mandate requiring every American to obtain health insurance of some shape or form first appeared in a policy document from the right-leaning Heritage Foundation toward the end of the 1980s, and for many years enjoyed wide support from Republicans, and denunciation from Democrats. Over time, increasing numbers of Democrats warmed to the idea, while support slowly eroded among Republicans. Nonetheless, the concept of an individual mandate still enjoyed enough currency within the GOP that Republican Governor Mitt Romney signed on to a broader state health reform plan which included such a measure.
Indeed, perhaps one of the greatest ironies of the current position of the political constellations regarding the ACA is that a reform program today so closely associated with President Barack Obama nonetheless owes is inspiration to the Massachusetts plan endorsed by his current opponent in the 2012 campaign. During the primary race, the former governor’s Republican rivals were hardly exaggerating when they dubbed the ACA “ObamaRomneycare” or, more simply, Romneycare. In the zero-sum game that American electoral politics has become, however, a measure adopted by the one party cannot possibly draw one iota of support from the other, and thus the Democratic adoption of the individual mandate and, along with it, insurance exchanges, made such measures radioactive to Republicans.
Republicans responded to the 2010 passage of the ACA along two tracks—one legislative, and the other judicial. Congressional Republicans immediately sought to repeal the legislation, a cause to which many remain rhetorically committed. It should be noted just how extraordinary this mission happens to be—the last repeal of a major piece of social legislation occurred in 1988, and that effort enjoyed broad, bipartisan support. In addition to these efforts, Republican state officials and representatives of small business and other groups collectively pursued lawsuits in an effort to get the ACA overturned by the courts.
The legal plaintiffs launched two major challenges against the legislation. On the one hand, they argued that the individual mandate was unconstitutional, asserting that the federal government did not possess the power to regulate “inactivity” by charging a penalty for a failure to obtain health insurance. On the other, plaintiffs argued that the Medicaid expansion included in the act, which requires states to cover all residents who fall within 133 percent of the federal poverty line or else lose all federal contributions to their Medicaid programs, constituted coercion.
The Obama administration, in turn, maintained that the Commerce Clause of the U.S. Constitution allowed the federal government to regulate economic activity, and that health insurance and health care most assuredly represent economic activity. In case that argument failed to sway Supreme Court justices, the administration claimed that the insurance penalty could be considered a tax—despite the fact that the president had long chafed at opponents who referred to new taxes under the ACA.
Legal wrangling
Once the cases reached the Supreme Court, the justices decided to take on two additional issues—severability and the dictates of the Anti-injunction Act. The former refers to the question of whether individual bits of a legislative package can be eliminated without endangering the entire law. The Antiinjunction Act is a rather obscure piece of legislation that prevents would-be litigators from challenging a tax measure in court before said tax is actually collected. If, as the administration’s fallback argument seemed to suggest, the insurance penalty was a tax, then the Supreme Court would not be able to even rule on the act until 2014, when the penalty went into effect.
The final ruling was a decidedly hybrid creation. While the majority opinion seemed to brush aside the Anti-injunction Act, Chief Justice John Roberts nonetheless concluded that the individual mandate was constitutional not on the basis of the Commerce Clause, but on account of Congress’ taxing powers. That’s right—the insurance penalty could be considered a tax, but only when it came to the question of the mandate’s constitutionality. Because Congress did not call the penalty a tax, however, the Court ruled that the Antiinjunction Act need not be applied. Many observers were surprised that the Chief Justice sided with the more liberal justices in upholding the heart of the ACA.
The surprises, however, did not end there. It had been widely assumed that the Medicaid expansion would also be upheld. In the event, however, the majority ruled that the expansion itself should stand, but that the threat to withhold Medicaid funds did, in fact, constitute coercion, and should therefore be dropped. It is too early to tell just how many states will opt to go along with the Medicaid expansion now that the policy“stick” has been removed. Some governors, like Florida’s Rick Scott, have already gone on the record with the intention to refuse any expansion of the program.
Since the Bush vs. Gore ruling in 2000, it has become fashionable to assume that the Supreme Court is as partisan in its behavior as any other institution of government. This is perhaps going a bit far, but it remains the case that the court and its members are undoubtedly concerned at some level about the legitimacy—and therefore effectiveness—of the institution. It is this concern that likely played a role in Chief Justice Roberts’ unique stance on the ACA. For Democrats, the complete reversal of Obamacare would have represented a bald political powerplay—after all, it is not every day that such an important piece of legislation is turned back by the court. Moreover, coming on the heels of not only the Bush ruling, but also the more recent Citizens United campaign finance case, it would have seemed part of a pattern of conservative overreach on the part of the high court.
By upholding much of the ACA, then, the Supreme Court was able to come out of the battle looking a good bit less politically motivated, with the chief justice’s reputation as a team player particularly enhanced. At the same time, conservatives did receive a boost—but one that is not immediately evident. In ruling that the Commerce Clause did not support the individual mandate, the court seems to have narrowed past readings of that bit of the Constitution, limiting its scope as a justification for future social welfare programs. By ruling the threatened withholding of Medicaid funds coercion, moreover, the justices reduced the government’s ability to revoke funding from organizations that behave in ways that run counter to basic protections—by discriminating on the basis of race or creed, for instance.
Attentive readers of news articles have therefore found themselves re-introduced to the mythical figure of Pyrrhus, who scored a limited victory but lost the larger war. In a similar fashion, the court’s ruling on the ACA may offer momentary triumph to the president’s supporters while severely curtailing future room for maneuver. We will not know whether conservatives have won the wide war, however, until November.
While the ruling represents a break in active hostilities, the issue of health reform will come to a head once more should Romney win the White House. In that event, a President Romney could well support legislative efforts to repeal large swaths of the ACA, likely through reconciliation, the same parliamentary tool Democrats used to pass the legislation in the first place. The court ruling does ensure, however, that implementation of increasing portions of the legislation will go forward, making any future rollback practically difficult. The battle over health reform is far from over.