Because most philosophies that frown on reproduction don't survive.

Friday, June 29, 2012

Borrowed Thoughts on the Obamacare Ruling

I'd been holding back on posting on the Supreme Court's upholding of the Affordable Care Act, both because it's too hot to think around the Darwin house at the moment, and because I'm a non-expert on constitutional law and found most initial responses dispiritingly knee-jerk. Around Facebook (which since I'm reading Alistair Horne's history of the Algerian war, I'm picturing as a kind of French flash-mob of political opinion) the general consensus among my mostly conservative friends seemed to be that this was the day on which the US Constitution died. Given some of the amazingly bad Supreme Court decisions in our history (Dredd Scott, Roe v. Wade, Buck v. Bell, etc.) a ruling that congress can fine people (if we call it a tax) for not buying health insurance doesn't exactly strike me as rating among the top travesties.

Other conservatives (and apparently some progressives) have spun the ruling instead as some sort of a long term conservative victory in disguise (since it explicitly reject the ability of congress to require people to buy a product via the Commerce Clause.) Although I do think that, at a political level, it keeps the presidential race in November simpler to have Obamacare intact as a weapon to attack the administration with (given that it continues to be unpopular) rather than having it off the table or its most unpopular provisions removed, I don't think it's possible to spin this as a conservative victory. Clearly, the Democrats won on a large new social program being ruled an acceptable expansion of state power.

As if often the case at such times, Ross Douthat sums it up well, so I'll mostly quote his piece today entitled accurate, "Yes, Liberals Won":
There was a widespread and bipartisan impulse, in the wake of yesterday’s health care ruling, to cast John Roberts’ exercise in political finesse as a potentially significant long-term win for conservatism. Variants of this case were made by George Will and Jay Cost on the right, Jonathan Chait and Tom Scocca on the liberal side of things, and many others besides....

I would find this perspective considerably more persuasive if I could envision how, exactly, this war of “slow constriction” is supposed to play out. Does anyone really believe that a Roberts-led Court is likely to revisit the constitutionality of the major post-New Deal social programs? That it’s going to overturn child labor laws and minimum wage laws, or shutter regulatory agencies? Whatever precedent was set yesterday, that kind of genuine counter-revolution seems highly unlikely.

Likewise, does anyone believe that a host of new Obamacare-style programs — crucial to liberalism’s ambitions, but vulnerable to constitutional challenge — are likely to pass Congress in the next decade or two? If we were entering an era in which an aggressive, ascendant liberalism were poised to push through more sweeping social legislation, then Roberts’ line in the sand might matter enormously for a whole series of looming debates. But the state of our finances (and our politics) makes it much more likely that the Obamacare contest will be remembered as a last lurch forward for welfare state liberalism than the first of many attempted government expansions like it. The manner in which liberals won yesterday could theoretically cost them opportunities to further expand the administrative state, but they probably weren’t going to have those opportunities anyway.

In an intellectual sense, the logic of the health care mandate may indeed have been “pregnant with rampant statism,” as Will puts it. But in terms of practical politics, the health care bill was itself the most statist act that’s likely to pass Congress over the next decade at least, and maybe in John Roberts’ lifetime. And by upholding it, Roberts handed liberals a victory in the scope-of-government war that matters most to them, while at worst setting them up to lose some less important skirmishes somewhere down the road.

On a side note of particular interest to Catholics, there seems to be some confusion out there on which "mandate" the Supreme Court upheld in this ruling. The mandate in question was the individual mandate (the rule that if you don't have health insurance from some other source, you're required to purchase health insurance or else pay a fine for not doing so) not the HHS mandate (an administrative ruling from the department of Health and Human Services which stated that many Catholic run organization are not in fact "religious organization" which can potentially be exempted from the requirement to provide their employees with contraceptive and "morning after" coverage as part of their Obamacare mandated health care plans.) There are a number of lawsuits that have been filed against the HHS mandate insisting (I believe correctly) that it is a restriction of the freedom of religion. These lawsuits, however, have not yet wended their way through the courts to a final ruling, and it will doubtless be some time before they do. Although, clearly, if the Supreme Court had thrown out the whole of Obamacare, this would have averted any need to fight the HHS mandate, the ruling yesterday was not a ruling against the specific freedom of religion question in play there, it was on an unrelated issue.


Anonymous said...

I thought both of Douthat's posts on this were spot on. There was more bad news than good news for conservatives here, but it was not the end of the world. Roberts was clearly playing politics rather than "calling balls and strikes," but it does seem more fitting for Obamacare to be remedied(if at all) by Congress rather than by the Court. Moreover, Roberts did not do any significant damage to Con Law in the process. I think conservatives should be disappointed, but not devastated. Calling this a conservative victory, however, is absurd.

Crude said...

I'm not sure why it's more fitting for Congress to remedy Obamacare if Obamacare was unconstitutional. And no damage? Again, the conservatives are saying otherwise. Cue the 'you can tax people for not buying and eating broccoli' line.

What I thought was particularly odd was how Roberts said that it's not the court's role to pass judgment on legislation. But he apparently does think it's the court's role to try and fix a bill some way, any way, to make it work, even if it was unconstitutional as thought up and intended.

Tony said...

Though the Roberts decision (yes, I was chose my term carefully) will improve our chances in November to not only put a stake in the heart of Obamacare, but to put a stake through the heart of the Obama presidency.

The problem with it is, the Justices are tasked to interpret the Constitution, not politicize it. They are lifetime appointments and as such are shielded so they may be non-political without fear of retribution.

I believe I heard Roberts say that "elections have consequences" which is basically that we elected this Congress so we will have to live with them. The SCOTUS is supposed to be a protection against the horiffically bad decision to elect despots who are in it for themselves, and not in it for the good of the people. Sure, we can vote them out later, but in the meantime they are not supposed to have carte blance to f^#& with us as they will.

If we can't expect any of the branches of government to be looking out for our welfare, maybe it's time to lock and load.

amy said...

"I'm reading Alistair Horne's history of the Algerian war..."

It is interesting to see these times through the eyes of history. I am reading Tacitus' "Annals." And trying not to be paranoid.