The solution of any geometric problem begins with an assumption, and the assumption in this week’s political geometry is that the Supreme Court will overturn the Affordable Care Act that first opponents, then the rest of us, have come to call Obamacare. This may or may not come to pass. Judicial history is rife with Supreme Court oral arguments that seem to go one way only for the decision to go another. The great irony of Obamacare, of course, is that its most controversial provision, and the thing about it that has rallied conservatives against it, was itself a conservative article of faith for the past two decades right up to the moment that Barack Obama embraced it; and this is the notion—originally advanced as a response to Clintoncare by the right-wing Heritage Foundation and then championed until as recently as three years ago by Republicans, including former Massachusetts governor Mitt Romney and former speaker Newt Gingrich—that the government could and should compel individuals to take responsibility for buying their own health insurance. The right liked this idea precisely because it put the financial onus of health care on individuals rather than where President Bill Clinton believed it belonged: on the businesses that employ individuals.
This past Tuesday, the second day of the Supreme Court hearings, made apparent that skepticism abounds among the Justices about the constitutionality of this part of the plan. By the end of the next day, Wednesday, everything was more ambiguous, not only judicially but politically when a consensus manifested itself that, without the individual mandate, the law as a whole is either meaningless or so difficult to understand as to be impossible to uphold, let alone execute. What complicates the situation particularly for Anthony Kennedy, the man in the Court’s middle and the pivotal justice in this matter, as in others, is that notwithstanding opponents’ arguments as to its radicalism, the Obama plan was a compromise with conservatives, or an attempt at one—a middle-course approach finally embraced by a president who himself had raised questions about the mandate—and if the middle course should be struck down, then the Court has left the country facing two choices. One is a more far-reaching plan by which either employers or the government itself provides health-care coverage. The second is no plan at all, which is to say a status quo that even honest conservatives know is unsustainable for a national economy devoured by health care in exponentially-growing percentages.
Both history and budgetary reality dictate either some kind of health-care reform or monetary cataclysm. Should the Court strike down the mandate on the basis that, as Kennedy put it Tuesday, the compulsion forcing individuals into the health-care market fundamentally changes the relationship between the individual and the state, and should the Court thereby demolish the first-ever such reform to pass Congress, it’s not overstating things to suggest that the decision will leave the country in a kind of crisis. While it’s difficult to imagine that the Justices are unaware of this, it’s hard to know to what extent they take such a consequence into consideration, notwithstanding Justice Antonin Scalia’s musings during Wednesday’s session about what is legislatively feasible (this from the most outspoken critic of judicial activism, by which Scalia means not activism from the right but from the left). In the meantime the Obama campaign has three months to ponder what lemonade is to be made from the lemon and whether such a crisis can or should be transformed into a referendum. To be sure, this is a cynical consideration in the face of the havoc that overturning the act will have wrought, but campaigns are in the business of cynicism, and as they’ve done so often Republicans will cast the argument in its most malevolent terms, aimed at the heart of Obama’s legitimacy as both president and American, suggesting that the subversion of the Constitution by a former constitutional scholar pledged to uphold it verges on the impeachable.
It’s still not unthinkable that the Court could decide in favor of Obamacare 6-3, with Scalia, Samuel Alito, and Clarence Thomas the dissenters. Both Kennedy and Chief Justice John Roberts have enough historical ego to weigh not only where all this is going and where it could all lead but where it could leave the Court—and Roberts and Kennedy—in the eyes of history. They may already suspect posterity will take a dim view of recent court decisions involving voter registration and campaign financing, and whatever their personal ideological misgivings, neither may want to be attached to what in practical terms can only be one of the most controversial and pandemoniac decisions since Dred Scott. In what currently unfolds as the Be-Careful-What-You-Wish-For Election, the Court’s ruling has the clear capability of enflaming and motivating whichever side “loses” and thrusting ownership of this vexing issue on whichever side “wins”—including Republicans if the individual mandate they once cherished and now so loathe is struck, and Democrats if the act is upheld and thus becomes something to be defended before a public conflicted and confused about the issue from the outset. When the assumption in a geometric equation turns out to be wrong, the mathematician starts over, and sometimes the assumption proves something else entirely.
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