Health care decision cements law, not debate


U.S. President Barack Obama greets U.S. Supreme Court Justices Kennedy and Ginsburg before the president's State of the Union address to a joint session of Congress on Capitol Hill in Washington

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  • That Justice Kennedy joined the dissent shows that he has become a truly radical jurist. #SCOTUS #ACA

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  • Ornstein: Roberts is more sensitive than his 4 usual collaborators to the legitimacy & public standing of the #SCOTUS

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  • A vote to uphold the #healthcare law makes it hard to argue that the #SCOTUS has become a purely partisan instrument.

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  • There will always be a need to come up with an alternative to find ways to implement what is now the law of the land.

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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.

But as President George H.W. Bush demonstrated, everyone could go through life without eating broccoli and do just fine. Health care is different and, in any case, the system of checks and balances would prevent Congress and a president from mandating that everyone eat broccoli. If it didn’t, a subsequent Supreme Court could reject a law that mandated eating broccoli on the grounds that it is different from health care.

Of course, there remain major questions about the implementation of the law after the decision.

The Medicaid part of the decision has created an opening for governors, including Republicans Rick Scott of Florida and Bobby Jindal of Louisiana, to say they will reject the Medicaid expansion in the law, which is no longer a choice that would mean elimination of existing Medicaid dollars from the federal government.

But rejection of the Medicaid expansion is counterproductive and a sharp stick in the eye to residents of these states. First, of course, it is turning down 100 percent of federal funding for three years to help the poorest get insurance and care. Second, the failure to insure these people means that they will be going to emergency rooms and urgent care facilities when they need help — and will add to the costs of health care for the rest of us.

New Orleans Mayor Mitch Landrieu reflected on this problem in a conversation at the Aspen Ideas Festival, noting the heavy burden that Jindal’s decision would place on the already-strapped city.

Then there are the continuing efforts of Republicans in Congress to repeal the law — and to divert attention away as much as possible from the equal promise to replace it.

There is a new mantra, to be sure, the rote use of Frank Luntz’s phrase, “patient-centered” health care reform, which is utterly meaningless in policy terms but is focus-group-tested and a lot better than conceding that repeal means putting those with pre-existing conditions back in jeopardy, reinstating the doughnut hole for seniors’ prescription drugs and taking 20-somethings off their parents’ insurance.

It is always possible that the pledge to repeal will suffice in the campaign. But at some point, there will be a need to come up with a serious alternative — or at least, in the aftermath of the court decision, to find reasonable ways to fulfill Congress’ sworn responsibility and implement what is now firmly the law of the land.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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About the Author


Norman J.
  • Norman Ornstein is a long-time observer of Congress and politics. He is a contributing editor and columnist for National Journal and The Atlantic and is an election eve analyst for BBC News. He served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also served as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann (Oxford University Press, 2006, named by the Washington Post one of the best books of 2006 and called by The Economist "a classic"); and, most recently, the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann, published in May 2012 by Basic Books. It was named as one of 2012's best books on pollitics by The New Yorker and one of the best books of the year by the Washington Post.
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