The Enduring Damage of the Obamacare Case

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What a reliefbut 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 polarizationwhich 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.  

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