The occasion was so momentous that reporters, lawyers, and a horde of citizens, both for and against the law, camped in front of the highest court in the land waiting to hear the decision. When the news finally broke, several mainstream news organizations got it wrong in the rush to be the first to broadcast it. “Breaking News: The Individual Mandate Deemed Unconstitutional” was the chyron on CNN and FOX, and even the venerable NPR jumped the gun.
But the individual mandate had squeaked through under Congress’ taxing authority, and when the complex decision finally trickled down, it was met with outrage and exultation in conservative and liberal quarters respectively. It was particularly galling for Republicans that the swing vote appeared to have been cast by Chief Justice Roberts, who joined the four liberal justices in keeping the law intact.
When Barack Hussein Obama was inaugurated in January 2009, the ambitious young president was already thinking of his legacy. While the House of Representatives was solidly Democratic, control over the Senate was tenuous, with a wafer-thin filibuster-proof majority comprising of several Democrats from the Southern states who tended to vote more like their Republican colleagues. After negotiating a stimulus package that then seemed absurdly large, he knew that political goodwill was available for only one big piece of legislation before the midterm elections of 2010. He chose universal healthcare, a hill previous Democrats had died on, including Hillary Clinton, whose abortive attempts at influencing the healthcare debate in the 1990s had nearly exhausted the political capital of President Clinton.
One lesson the new president had learnt from the Clinton failure was the complete lack of political support for the creation of a “public option” among Republicans and conservative Democrats. The public option was a mechanism that would effectively create Medicare for all, using a central government-run agency that would compete with other health insurance providers. With what in hindsight seems like naiveté, and with a group of advisors from the Clinton era, the President crafted a plan that hewed closely to the market-driven proposals of the Republican Party from the 1990s, hoping it would get majority support in the Senate.
But Senate minority leader Mitch McConnell, who famously declared that “the single most important thing we want to achieve is for President Obama to be a one-term president,” persuaded his faction to close ranks. Republicans developed amnesia about their previous statements of support for similar plans, and began a multi-million dollar campaign of misinformation.
The Individual Mandate
The individual mandate is a simple concept, though Chief Justice Roberts’ ruling has muddied the waters. In simple terms, the individual mandate levies a fee on individuals who choose not to buy into health insurance. The mandate is crucial to the profitability of insurance companies now compelled to provide coverage for pre-existing conditions without lifetime limits.
In arguing the case, Solicitor General Donald Verrilli looked first to the Commerce Clause for support, saying that it was in Congress’ powers to regulate commercial transactions between states, and covered the scope of the mandate. In addition, he argued, imposing a penalty for non-compliance, which was the essence of the mandate, fell under Congress’ taxing authority.
His arguments were met with derision by the conservative members of the court. “Can the federal government make you buy broccoli?” asked Justice Scalia, who disapproved of the expansion of government authority that the mandate would entail.
However, Chief Justice Roberts ultimately cast the swing vote for the mandate, accepting that the mandate indeed fell within the powers of Congress to levy taxes.
Opponents of the law have leaped on this distinction, falsely but gleefully calling “Obamacare” the biggest tax increase in history. Despite the media-generated drama surrounding the ruling, most lay voters have focused on the gladiatorial aspect of the ruling, anointing winners and losers. The Pew Research Center reports that “just 55% of the public knows that the Supreme Court upheld most of the health care law’s provisions; 45% say either that the court rejected most provisions (15%) or do not know what the court did (30%).”
The Swing Vote
After the blistering cross-examination of Solicitor General Verrilli by the conservative justices of the Supreme Court in March 2012, the ACA was considered to be in considerable jeopardy. After the Citizens United decision opened the floodgates of corporate money into American politics, most court observers were gloomy about the partisan leanings of the court. But because the arguments made by the government were so legally sound, optimists hoped for a swing vote from Justice Kennedy who has, on rare occasions, sided with the four liberal justices.
The swing vote, to everyone’s surprise, turned out to be from Chief Justice Roberts, who, it is widely believed, originally sided with the other conservative justices. Perhaps the dream of a legacy haunted him as much as it did the president, and he did not want to dismantle the most significant safety net enacted in generations. Perhaps it was the fear of the market-friendly ACA being replaced by a fully government run healthcare industry. Prescient observers have made these arguments and have now been vindicated.
Like other previous safety nets like Social Security and Medicare, the ACA appears likely to be welcomed by the voting public once all its features kick in and the benefits are personally felt by people. And like previous laws, its imperfections will likely be resolved by subsequent governments. President Obama’s big gamble appears to have paid off, especially since his opponent in the upcoming elections is Mitt Romney, who as governor of Massachusetts, worked with congressional Democrats to craft an eerily similar plan, which has been tremendously successful in the intervening years. Thirty-three million Americans will join the rolls of the insured. The Congressional Budget Office scores the bill as a deficit-reducing instrument. Opponents continue to talk of repeal, but without a suitable policy to replace it, they may find little support from voters. The ACA was a “Big F***ing Deal” when it passed in March 2010, and the Supreme Court has affirmed that the BFD is as constitutional as it can get.
Politically, the ACA may turn out to be a wash for President Obama in the 2012 elections. Democrats still grouse about the president’s lack of enthusiasm for the public option, after he had supported it as a candidate, but reluctantly concede that the law will improve the lives of millions of Americans. Republicans who live in the bubble of Fox News are and will be persuaded that the mandate is a tax and not a penalty. But history will record the ACA’s survival by a single vote in the Supreme Court as the first step in a great nation’s recognition that its wealth and prosperity behoove it to provide for its weakest, and on June 27, 2012, the United States emphatically joined the developed world in moving towards making basic health care available to all its citizens.
While the government cannot mandate its citizens to eat broccoli, it can certainly make it easier for the average American to visit his/her primary care physician for regular checkups, and it may be the doctor giving that prescription instead!
To learn more about how the ACA impacts you, your family, or your business, check out http://healthcare.gov.
Vidya Pradhan is a freelance writer who hosts the weekly radio show Parent Talk on KZDG 1550 AM. She also runs the community blog Water, No Ice and was the editor of India Currents from June 2009 to February 2012.