Feb. 8, 2016

Health Care Decision Cements Law, Not Debate

The Supreme Court decision on the constitutionality of the 2010 health care law dominated the recess and precipitated the first post-recess action in the House — the renewed vote to repeal the law.

Washington Post writer Sarah Kliff noted this is a Baskin-Robbins event — the 31st vote to repeal or defund all or part of the law. Along with the vote, we have the decision by a half-dozen or more governors to refuse the Medicaid expansion in the law.

I was not surprised by the Supreme Court decision, but I thought it was more likely to be a 6-3 than 5-4 decision, with both Chief Justice John Roberts and Justice Anthony Kennedy upholding the law.

That Kennedy joined the dissent, and that credible stories report he led a vigorous effort to convince Roberts to join the decision — not one just to throw out the mandate but the entire law, including vast parts unrelated to the mandate — show that he has become a truly radical jurist. His actions here follow in the footsteps of his Citizens United decision and his refusal to even consider the evidence from Montana of corruption caused by corporate involvement in campaigns. The willingness of justices such as Kennedy to give the back of the hand, instead of due deference, to elected lawmakers in Congress and in states is truly troubling, judicial activism run rampant.

Why was I not surprised by Roberts’ decision, especially given his eagerness to expand the Citizens United case beyond what the plaintiffs had argued? Because I believe that Roberts, as the chief, is more sensitive than his four usual collaborators to the legitimacy and public standing of the court.

Roberts knows that making a series of 5-4 decisions that attack the Obama administration in the middle of a heated presidential campaign would be tough enough — but he also knows that the court’s fall term includes the great likelihood that there will be 5-4 votes to blow up the delicate balance on affirmative action in higher education crafted by Sandra Day O’Connor, and jettison Section V, the preclearance provisions of the Voting Rights Act.

A vote to uphold the health care law makes it very hard to argue that the court has become the purely partisan instrument of its five Republican-appointed justices.

On the decision itself, Roberts’ logic was actually foreshadowed in the oral arguments, where he showed an uncommon interest in the taxing power issue. But the fact that he rejected the mandate on Commerce Clause grounds, accepting the argument that inactivity is not the same as activity and that the slippery slope could lead Congress to mandate that everyone eat broccoli, is itself dismaying.

Everyone will have health issues and encounters with the health care system during their lifetimes. For those who choose to remain uninsured, those encounters will have a serious effect on the rest of us, raising our insurance premiums and out-of-pocket costs (and probably our taxes) as hospitals, doctors, cities and states have to cope with emergency room and other treatments that are uncompensated.

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