Thoughts on the Health Care Ruling
I'm not a legal expert but had a number of takeaways from this week's surprise Supreme Court ruling on the Patient Protection and Affordable Care Act. I wasn't as floored as some that Chief Justice John Roberts was the deciding vote to uphold the act because I read a number of pieces by legal experts leading up to last spring's oral arguments that predicted Roberts was more likely to uphold than Kennedy based on past rulings in vaguely similar cases. However, in the oral arguments Roberts showed absolutely no sympathy for the government's case so as of Thursday morning the little remaining hope of the PPACA's survival seemed to rest in the hands of Anthony Kennedy who, as it turns out, was actually lobbying Roberts to rule against the act.
Anyway, my three primary takeaways from the ruling....
First, the Supreme Court of the United States is truly in the hands of a fringe right-wing majority. Even amongst the most conservative jurists on the bench nationally, the majority seemed to believe that the individual mandate was easily justified within the bounds of the interstate commerce clause. But with this SCOTUS, five justices were monolithically to right of even the majority of conservative judges, and they didn't even blink when reaching the conclusion that the mandate was unconstitutional. Roberts, apparently conflicted about the court seeming too partisan and overturning the will of a democratically elected legislative body, ultimately carved out a semantic exemption that allowed him to uphold the law, but otherwise all five judges were prepared to toss out the entire law by judicial fiat. While Roberts deserves a muted hat tip for not fancying himself a super-legislator with broad-reaching veto power over legislation he doesn't like, it's still very scary that four other conservatives believe that is their role, and overturning the entire health care law based on an extremely restrictive view of interstate commerce that applies to one portion of a 2,700-page law really would have been a judicial overreach of monstrous, banana republic proportions. In other words, the bar for which we tip our hat to conservative SCOTUS judges is pretty low.
Second, the business community has just been energized in an election year, and that can only mean fantastic things for Mitt Romney and right-wing SuperPACs. There was already widespread speculation that Romney's campaign was gonna outraise Obama's in the final months of the campaign, but with this ruling, the business interests who have consolidated all the profits of the last three decades of the American experiment will really let the mullah flow in the direction of Republicans in general and Romney in particular. Expect an outsized fund-raising advantage for Romney over Obama in June, figures which are likely to be announced as early as tomorrow, and for Romney to pull in as much as $150 million (or perhaps even more!) in July, significantly more than Obama.
And third, unless Republicans are able to win the trifecta in November and overturn the PPACA, the Democrats own American health care for the foreseeable future. This is what makes me so uneasy because is a poorly constructed bill, and only through accounting gimmickry were drafters able to manipulate cost savings. Particularly with the Medicaid expansion tossed out by the court, it's even more unlikely the fanciful predictions of the PPACA "reducing the deficit" will come to pass. The more likely scenario is exploding out of control cost increases and unforeseen consequences of delivery. In some respects, this is to be expected with complex new legislation and lawmakers frequently count on being able to tinker around the edges and plug holes as they emerge, but that was in the era of a good-faith opposition. Republicans accepted the passage of Social Security and Medicare when they went into effect and always played along with Democratic majorities when it came to fixing them for the common good. That won't happen in the current era. The only solution today's Republicans will ever present with the PPACA is full repeal. Any problem that arises helps the GOP politically as they can pin fault on the Democrats for passing it. Twenty years into the future, if the law still stands, the Republicans will be just as entrenched in their repeal position as they are today and will take every opportunity to sabotage the legislation's enactment and take advantage of the political fallout from that sabotage. Nobody wants ownership for the trainwreck that is American health care policy in a nation as polarized as this one, but the Democrats now have it and will likely hold it. As a result, expect the PPACA to be the Democrats' version of the Iraq War, broadly unpopular forever and leading to significant short-term and long-term election defeats. I hope I'm wrong on this, but I'm really not confident about this legislation.
Anyway, my three primary takeaways from the ruling....
First, the Supreme Court of the United States is truly in the hands of a fringe right-wing majority. Even amongst the most conservative jurists on the bench nationally, the majority seemed to believe that the individual mandate was easily justified within the bounds of the interstate commerce clause. But with this SCOTUS, five justices were monolithically to right of even the majority of conservative judges, and they didn't even blink when reaching the conclusion that the mandate was unconstitutional. Roberts, apparently conflicted about the court seeming too partisan and overturning the will of a democratically elected legislative body, ultimately carved out a semantic exemption that allowed him to uphold the law, but otherwise all five judges were prepared to toss out the entire law by judicial fiat. While Roberts deserves a muted hat tip for not fancying himself a super-legislator with broad-reaching veto power over legislation he doesn't like, it's still very scary that four other conservatives believe that is their role, and overturning the entire health care law based on an extremely restrictive view of interstate commerce that applies to one portion of a 2,700-page law really would have been a judicial overreach of monstrous, banana republic proportions. In other words, the bar for which we tip our hat to conservative SCOTUS judges is pretty low.
Second, the business community has just been energized in an election year, and that can only mean fantastic things for Mitt Romney and right-wing SuperPACs. There was already widespread speculation that Romney's campaign was gonna outraise Obama's in the final months of the campaign, but with this ruling, the business interests who have consolidated all the profits of the last three decades of the American experiment will really let the mullah flow in the direction of Republicans in general and Romney in particular. Expect an outsized fund-raising advantage for Romney over Obama in June, figures which are likely to be announced as early as tomorrow, and for Romney to pull in as much as $150 million (or perhaps even more!) in July, significantly more than Obama.
And third, unless Republicans are able to win the trifecta in November and overturn the PPACA, the Democrats own American health care for the foreseeable future. This is what makes me so uneasy because is a poorly constructed bill, and only through accounting gimmickry were drafters able to manipulate cost savings. Particularly with the Medicaid expansion tossed out by the court, it's even more unlikely the fanciful predictions of the PPACA "reducing the deficit" will come to pass. The more likely scenario is exploding out of control cost increases and unforeseen consequences of delivery. In some respects, this is to be expected with complex new legislation and lawmakers frequently count on being able to tinker around the edges and plug holes as they emerge, but that was in the era of a good-faith opposition. Republicans accepted the passage of Social Security and Medicare when they went into effect and always played along with Democratic majorities when it came to fixing them for the common good. That won't happen in the current era. The only solution today's Republicans will ever present with the PPACA is full repeal. Any problem that arises helps the GOP politically as they can pin fault on the Democrats for passing it. Twenty years into the future, if the law still stands, the Republicans will be just as entrenched in their repeal position as they are today and will take every opportunity to sabotage the legislation's enactment and take advantage of the political fallout from that sabotage. Nobody wants ownership for the trainwreck that is American health care policy in a nation as polarized as this one, but the Democrats now have it and will likely hold it. As a result, expect the PPACA to be the Democrats' version of the Iraq War, broadly unpopular forever and leading to significant short-term and long-term election defeats. I hope I'm wrong on this, but I'm really not confident about this legislation.
posted by Mark at 6:20 PM
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