PLANK JUNE 28, 2012
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What a relief—but much damage was still done.
Maybe it’s inevitable and right that the fate of such a large social reform was ultimately ratified or undone at the Supreme Court. I tend to think the opposite: It’s pretty disgraceful that the case got this far. We have a national, $2.8 trillion healthcare system that includes huge and obvious inefficiencies. That same system includes huge and obvious cruelties towards the sick or injured. Congress and successive presidents spent decades debating how to modify and stabilize our complex mix of public and private coverage to address these problems. This decision allows us to continue the hard work required to attack these problems.
In its specifics, though not in the final congressional vote, the Affordable Care Act is precisely the bipartisan compromise Americans want to see. Eight decades of legal precedent support its constitutionality. I was honored to sign two excellent amicus briefs written by leading experts arguing these legal and policy points. The fatuous questions at oral argument from Justices Roberts, Alito, and Scalia were thus frightening and discouraging. That conversation seemed to signal that partisan polarization—which disfigures so much of American life--disfigures our highest court, too.
Here I seemed to have gotten things wrong. Perhaps I was overly cynical regarding Justice Roberts, but it’s still sobering that four justices were apparently willing to strike down the centerpiece domestic policy initiative of an opposing president, for no compelling reason of constitutional law.
The story of this case still disappoints in other ways, too. Conservative partisans have successfully inflicted the harm one normally associates with frivolous lawsuits and unjustified judicial activism. Prolonged legal uncertainty has sapped public support for health reform and slowed the critical and intricate work states and the federal government must do in effectively implementing the new health insurance exchanges before 2014. Now that ACA has basically been upheld, the damage is still done. Very few states will really be ready to enact the new law; money has not been appropriated. Much work remains to be done, and much will be done badly due to partisan acrimony, insufficient time, and insufficient capacity to address very serious implementation concerns.
Sure, we need to fight out some basic partisan and ideological differences over the generosity and scope of health insurance coverage. That’s the above-the-fold conflict of health reform.
But much of the practical work of health reform is not ideologically divisive, or at least it didn’t have to be. Over the long haul, politicians in both parties must work together to pragmatically implement a vastly complicated law. We all know health reform and its progeny will need adjustments and fixes. Democrats and Republicans must address the tangled political economy of health care, which so undermines efforts to improve quality and reduce costs. And that’s basically impossible right now. Conservatives have seen to that through their trench warfare against qualified officials such as Donald Berwick, toxic death panel-type rhetoric, and not least this shameful (though thankfully failed) effort to reverse the electoral process through judicial activism.
17 comments
The only slight surprise should be Kennedy. Scalia is the most baldly partisan, but Alito and Thomas are both essentially deciding between which faction of the GOP to side with in a given decision. The only slight questions for them are whether to side with the tea party or the chamber of commerce in the rare instances in which they'd lead to somewhat different conclusions.
- miceelf
June 28, 2012 at 12:48pm
" . . . much of the practical work of health reform is not ideologically divisive, or at least it didn’t have to be." It didn't have to be, except for the recent radicalization of the Republican party. When one of the two major parties embraces a mixture of Social Darwinism and Libertarianism that resembles late 19th century thinking more than anything since, divisiveness in inevitable. If we can't agree that the punishment for failing to compete successfully in the marketplace should not include denial of medical care (and admirers of Ayn Rand cannot) then it seems that no compromise is possible, only victory by one side or the other.
- K_Wilson
June 28, 2012 at 1:19pm
Here is how I see it. The next time Conservatives come up with one of their alternatives to a Democrat's proposal, we can say, "Last time we used one of your ideas, it blew up the Interstate Commerce Clause."
- Nusholtz
June 28, 2012 at 1:19pm
Nusholtz...I found that terribly funny.
- ARealHero
June 28, 2012 at 1:44pm
This, "That same system includes huge and obvious cruelties towards the sick or injured," is key - and Republicans should be made to answer for it.
- Sophia
June 28, 2012 at 2:07pm
This piece is sadly simplistic and reflects the "we're right and you're wrong/evil" mind set that is destroying American public life. I support ACA 100%, but I find the following statement over the top: "In its specifics, though not in the final congressional vote, the Affordable Care Act is precisely the bipartisan compromise Americans want to see." All Americans, bipartisan -- what extraordinary hubris! Yes, I've read about the polls where they break out various parts of the legislation and people say they are for them. But this type of legislation is not a collection of specifics ... rather it is a single piece. And poll after poll shows that the majority of Americans are opposed to ACA as a single piece of legislation. And the legislation has nothing to do with "bipartisan" -- virtually every single Republican in the House and Senate voted against it and their candidates are denouncing it. Obama got a good piece of legislation through at a time when the Dems had an overwhelming majority in Congress. Then, as a result of either arrogance or ignorance or political ineptitude, they failed to convince, or even try to convince, the majority of the public that they had done the right thing. The "damage" is as much the fault of the Democratic leadership as it is the fault of the bad guys on the other side of the aisle.
- PeteBeck
June 28, 2012 at 3:18pm
PeteBeck, I searched and couldn't find an instance of "all Americans" anywhere in the post. And the point is that it is bipartisan in the sense that it includes a large portion of the republican platform from very recently. Agree on the piss-poor sales job that Obama has done.
- miceelf
June 28, 2012 at 3:25pm
Pete, the only reason "every single Republican in the House and Senate" voted against the ACA was that they had decided that a Democratic president resolving a major national issue with a basic idea that had originated in conservative circles was something they could not stomach. They wanted to deny Obama the achievement, any achievement in fact. I agree that the White House didn't do a great job, but I'd also point out that Max Baucus and his malicious procrastination made his own contribution to the crisis. The Blue Dog Dems have a lot to answer for.
- ironyroad
June 28, 2012 at 3:51pm
ARealHero :)
- Nusholtz
June 28, 2012 at 3:52pm
To miceelf: Yes, there is no quote "all Americans" but that, or at least "vast majority of all Americans" is the only reasonable reading of the passage I quoted. And to ironyroad, no matter how you spin it, the bill was not "bipartisan." How many Republicans actually participated in the drafting. The argument seems to be that it would have been bipartisan if the Republicans had only acted reasonably and, in any case, had changed their minds and accepted ACA after it was passed instead of campaigning against it this very moment. But that's not what happened. "Bipartisan" is purely Pollack's highly partisan spin. Let's be clear: By subsidizing health care for some, others will be taxed to support the subsidy. Many voters who are quite happy with the health care they have don't want to pay taxes for that purpose and so they oppose ACA. Simple as that.
- PeteBeck
June 28, 2012 at 4:14pm
These are somewhat different issues, Pete. (1) You can argue that X should not be taxed to provide Y for Z for various reasons, but in the health sector, if free riders end up going to the ER for treatment, then you and I have to pony up anyway. The tax is intended to avoid precisely that configuration which is a burden on American health care at the moment. (2) I didn't say the bill was bipartisan (I didn't use the word, at least). I argued that the reason why it wasn't bipartisan was based more on a GOP calculation on how to disable Obama's presidency than on any principle, as the principles behind the ACA are essentially Republican one's and therefore one would have imagined things could have gone as other major reform legislation has. You can call my comment spin, I can do likewise with yours. But the fact of the complete absence of the GOP is certainly open to my interpretation as much as to yours (indeed we have the famous remark "one-term president" from McConnell as evidence of that).
- ironyroad
June 28, 2012 at 4:31pm
That should read "principles behind the ACA are essentially Republican and therefore . . ."
- ironyroad
June 28, 2012 at 4:33pm
To irony, I meant that the spin in the use of the word "bipartisan" was Pollack's. The Republicans voted against ACA, they are campaigning against ACA, and their extremist tools on the Supreme Court voted against it. It clearly, simply is not bipartisan, no matter what they or some others may have said or done in the past. Romney, for example, says that laws like ACA should be decided on the state level, not the federal level. Others agree with him. In fact, a large number of Americans agree with him and as I said above oppose ACA. I suggest that the term Manichaean Fallicy seems appropriate to describe Pollack's thinking.
- PeteBeck
June 28, 2012 at 4:49pm
Bipartisan? Sure. Republicans supported it first, then Dems did. Just not at the same time.
- jcovell
June 28, 2012 at 7:53pm
I'm with Pete. I'll likely vote for Obama. That said the idea that Dems are beyond cynical mechanics is so laughable its depressing. Mendacity is unfortunately a bipartisan attribute that is really quite tiresome. But that is where we're at these days. In all self righteousness. This iteration of Pubs is indeed a thing to behold. I don't mean that in a flattering way. But they didn't get there in a vacuum.
- jacko
June 28, 2012 at 11:18pm
What's done, as a matter of constitutional law, is done, like it or not. The statute would be deader than the proverbial doornail if the commerce clause was its sole constitutional foundation. As it happens, it survives, thanks to the taxation clause, which its congressional proponents, and the president, constantly informed us while the legislation was under consideration, had no application. So be it. As a taxpayer, I found two phrases in CJ Roberts opinion of particular interest: 1) "...it may often be a reasonable financial decision to make the payment rather than purchase insurance" and 2) the statute "...merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance". The CJ also informs us that this penalty/"tax" is expected to produce a kingly $4 billion in revenue by 2017. Isn't that inspiring! Bear in mind this penalty/"tax" has no application to the inarguably poor; they fall under Medicaid. It merely inconveniences, as mildly as possible, those who choose to spend their money on products other than health insurance while letting others pick up the cost of the health care they receive. What a fright! A person who opts to pay the penalty/"tax" might be constrained to settle for a 26" flat screen TV instead of the 46" model they might have been able to afford without the statute in place. Free-riders of the world unite! You have nothing to lose but 20" of screen size. Think about sacrifice. If you switch from Stella Artois to Bud Light for a year, the big screen may still fall within your budget.
- lsernoff
June 28, 2012 at 11:27pm
There's an ethical issue of sorts in the mix, though. Free riders are now likely to become a little bit more identifiable as such, and it becomes increasingly difficult to make the case that that's being an honest citizen and good neighbor. If you announce your clever social security scam at a family gathering, in most cases people are going to be less than friendly. The number of free riders in Mass. is suprisingly low.
- ironyroad
June 30, 2012 at 2:23am