Supreme Surprise

The verdict of the Supreme Court upholding nearly all of the Affordable Care Act is a victory to be savored in the full knowledge that it may be only temporary and includes potentially damaging changes in constitutional interpretation.

It is a victory, first of all, for the millions of people excluded from health insurance who stand to gain protection despite their medical history or low incomes.

It is a victory for the rule of law in the face of a group of partisan conservative justices who want to immobilize federal power in social policy.

It is a victory for the millions of people who have struggled for decades to achieve equal access to health care.

And, not least, it is a victory for President Barack Obama and the Democrats in a critical election year. In fact, the outcome of the election will determine the ultimate significance of the Court’s decision. If Mitt Romney and the Republicans win in November, not only will they repeal the main provisions of the Affordable Care Act; they will also likely have the opportunity to consolidate a far-right majority on the Supreme Court that will extend the dangerous elements in Chief Justice John Roberts’s decision—limitations on federal powers under the Constitution’s commerce clause and its spending provisions.

But before considering the dangers, consider the victory.

During the national debate about the Affordable Care Act, the legislation seemed to die a thousand deaths. Pundits and politicians said health-care reform was finished after the right-wing town hall revolts during the summer of 2009. They said it was teetering on the brink of collapse when anti-abortion Democrats revolted in the House that fall and again when senators Joe Lieberman and Ben Nelson were withholding their support that December. They pronounced the law dead when Scott Brown won the special Senate election in Massachusetts in January 2010, depriving Democrats of a crucial 60th vote.

Amazingly, however, the legislation survived and passed, only to face yet another fateful test and moment of dire predictions in March this year, when challenges to the law’s constitutionality came before the Supreme Court and many observers again said the demise of health reform was at hand. What no one could have known was that even though Chief Justice Roberts would accept nearly all the conservative arguments against the law, he would find one basis for upholding it and thereby prevent it from being overturned in its entirety by the Court’s right wing.

And what no one could possibly know for certain today is whether Roberts’s endorsement of conservative doctrine will matter in the long run.

Agreeing with the conservatives, Roberts narrowed the application of the commerce clause, ruling that it permits federal regulation only of activity, not of inactivity, and that the law’s minimum-coverage requirement (the individual mandate) improperly threatens to dragoon inactive individuals into commerce. This distinction between activity and inactivity has no textual basis in the Constitution, and as Justice Ruth Bader Ginsburg pointed out in her opinion dissenting on this issue, all such line-drawing efforts to limit the commerce clause have previously failed and been abandoned by the Court, which has approved a variety of regulations requiring people to enter commerce.

The immediate significance of Roberts’s commerce-clause ruling, however, is unclear because there are no other new programs or proposals, at least from Democrats, that would involve a requirement for people to engage in commerce. Remember, the individual mandate began as a conservative idea to preserve a private insurance market. The proposal that is closest to it is the privatization of Social Security, which would also involve a requirement to buy a private product. A broad ruling against the individual mandate in health care, denying a constitutional basis for it in both the commerce clause and tax powers of the federal government, might have raised constitutional questions about Social Security privatization. But Justice Roberts’s invocation of the tax powers as a sufficient basis for the individual mandate in health care almost certainly extends to Social Security privatization as well.

The more serious immediate concern for liberals about the Court’s ruling on health care concerns the federal government’s spending powers and its ability to deny funds for an existing program if a state refuses to go along with new provisions enacted by Congress. Specifically, Roberts ruled—and here he was joined by Justices Elena Kagan and Stephen Breyer—that the federal government could not deny funds to the states for their existing Medicaid programs if they reject the expansion of Medicaid called for under the Affordable Care Act.

That decision makes it possible for states to opt out of the Medicaid expansion and could result in the denial of insurance protection to millions of low-income people in states like Texas with conservative leadership. In fact, some red states will almost certainly refuse to comply when the law first goes into effect, but will that recalcitrance persist? The law calls for the federal government to assume 100 percent of the costs for newly eligible Medicaid beneficiaries for the first three years, after which the federal share will still be 90 percent. States that refuse to participate will be giving up a tremendous amount of federal aid, and their hospitals and other health-care interests will make themselves heard even if their low-income citizens have little voice. If the law survives the 2012 election, I expect that nearly all states will sign up for the Medicaid expansion.

The Medicaid ruling, however, introduces new uncertainty in federal-state relations and may complicate changes in many other areas of policy, such as education and transportation, where Congress conditions aid to the states on compliance with federal rules. If the courts reaffirm and extend the limitations announced in the health-care decision, the ability of the federal government to meet national needs through joint programs with the states could be sharply curtailed.

That is one of the many reasons why we cannot be sure of the significance of the Court’s decision on the Affordable Care Act before the November election. With the Court’s decision, at least health-care reform lives to fight another battle, as it proceeds along what has thus far been a death-defying journey. 

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