What the Affordable Care Act Decision Will Mean

Sometime soon—probably in three weeks or so—the Supreme Court is going to hand down its ruling on the Affordable Care Act. Given what happened at the oral arguments, there aren't too many people predicting that the ACA will be upheld, although that of course remains a possibility. Those oral arguments now seem like someone smacking us awake out of a dream in which we believed that the Republican-appointed justices might have something in mind other than the partisan and ideological advantage of their side. It was a weird dream, so weird that in the days before the arguments, some people seriously discussed the possibility that Antonin Scalia might be bound by the logic he had followed in previous cases involving the commerce clause and vote to uphold the law. What a joke.

But it seems that the only real question is whether the Court will strike down the individual mandate alone, or strike down the law in its entirety. The former will mean one gigantic problem, namely what to do about the fact that starting in 2014 the ACA mandates that insurance companies accept everyone regardless of pre-existing conditions, a requirement that depends on the expansion of the risk pool the mandate provides. This is a big problem, but it's solvable. If they strike down the whole law, on the other hand, what you would have are many, many problems. Benefits like the closing of the "doughnut hole" in Medicare's prescription drug coverage and young people being allowed on their parents' insurance, have already taken effect and would be taken away. And many other provisions which haven't gotten the same attention will be affected. As Mark Miller of Reuters reports, "Important improvements to Medicare would disappear if the high court decides to toss out the entire law. The decision could paralyze the Medicare system because the act lays out the benefits, payment rates and delivery systems. Some of the changes already have been implemented, and others are works in progress."

If the ruling turns out that way, when it comes out you'll see Republicans celebrating, literally giving each other high-fives and saying things like "Woo!" with huge smiles on their faces. If they lived in a different place, they'd fire their guns in the air to express their glee. When that happens, we should try to remember exactly what it is they'll be celebrating. They'll be celebrating not just an undeniable political victory, but the fact that 30 million or so people who would have gotten coverage because of the ACA now won't. They'll be celebrating the fact that insurance companies will now once again be able to "rescind" your coverage if you get sick or have an accident. They'll be celebrating the rebirth of annual and lifetime coverage limits, which mean that if you get a serious illness you could go bankrupt even if you have insurance. They'll be celebrating the fact that "pre-existing condition" will continue to be part of our health care vocabulary. And they'll be so deliriously happy about all that, they'll practically pee their pants.

As Jeffrey Toobin reminds us, there is going to be a huge amount of discussion about what effect the ruling will have on the presidential race, and many people will argue that perhaps a loss at the Court will prove to be a political victory for Obama, if it ends up motivating liberals to get out and vote for him in greater numbers. That's certainly possible, but some tiny thread of silver lining shouldn't make you feel any better about the cloud of disaster it surrounds


Read the Avocado Declaration by Peter Camejo, written in 2004.

It details how a prime function of the Democratic Party is to siphon real protest into itself, where it then renders it inert. The Democratic Party pretends to be the friend of social movements before attempting to co-opt or neutralize them, and has done so for decades.

Both parties are corporatist and do not serve the people. That’s his primary point.


I'm a little confused by the assumption that a vote to overturn the mandate will necessarily be "partisan" and "ideological." The evidence that any of the Justices are motivated by partisanship -- ie, that they would vote differently had the mandate been passed by a Republican administration/Congress -- seems to be wholly absent. As for a decision being "ideological," in this case is not the ideological issue more or less identical to the legal issue -- what is the proper scope of the federal government's power?

Moreover, I am skeptical that the logic of prior Commerce Clause arguments by Justice Scalia compels him to find the mandate constitutional -- at oral argument, Justice Kennedy described the mandate as arguably "unprecedented, . . . a step beyond what our cases have allowed[.]" if so, then the logic of prior cases does not require a vote to uphold the mandate.

Finally, Justice Scalia is not necessarily my favorite justice, but to be fair he has often issued arguments that are contrary to his supposed ideological leanings, such as supporting the right to burn the flag, staking out a position to the "left" of the Warren Court on the ability of police to frisk for weapons (Minnesota v. Dickerson), strengthening the right to confrontation (numerous cases), and arguing that it was unconstitutional to treat a US citizen as an "enemy combatant." (Hamdi v. Rumsfeld).

So, I don't see how you can assume that a Scalia vote against the mandate must necessarily be illegitimate, as opposed to a product of honest disagreement.

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