I know that as someone who understands that the Affordable Care Act is a necessary piece of legislation that will need to be expanded and improved upon in the decades to come, I should have been overjoyed that Chief Justice John Roberts joined the majority in upholding its constitutionality.
Yet all I’m left thinking is, “Congratulations, you can read and comprehend the basic text of a not-all-that-difficult law document.”
I hate to go into my self-righteous, I’ve-been-saying-this-for-years mode, but here goes: the reason Roberts cited for upholding the law is the same thing I’ve been saying for nearly two years, ever since Tea Party legal scholars decided they wanted to challenge the ACA’s constitutionality: The mandate does not compel anyone to buy health insurance. If you don’t buy insurance, you won’t go to jail, no one will execute you, you will not have your thumbs pulled off—you’ll pay a tax at tax time (and not even that big of a tax compared to the amount of money you’ll cost the rest of us if you get in a standard car accident while uninsured).
You don’t have to be a constitutional scholar to understand that the federal government obviously has the power to tax you. You may not like the tax, but that does not make it unconstitutional.
Will I have to rejoice the next time I see a child put a square block in the square hole? Should I celebrate if I see a driver successfully stop at a red light? What about if a group Lincoln Park Zoo attendees does not climb into a lion’s cage and start poking it in the ass with a stick? Is that cause for delight?
The only thing I got wrong was that it would come down to “swing” justice Anthony Kennedy’s vote, when it was Bush appointee Roberts who broke from the conservative majority. People will be speculating as to why he did this for generations, but my guess is that it’s probably simple: the ACA being clearly constitutional, Roberts saw what striking down the act would mean to his legacy. Following Citizens United and Bush v. Gore the Supreme Court has become the playground of partisan hacks less interested in the law than scoring points for their team. Striking down Obamacare would have been a monumental undertaking of judicial activism and a total abdication of justice’s role within the constitution. In the end, he probably just figured this wasn't worth the trouble.
Yet that doesn’t change the fact that four of the nine justices voted to overturn the law, including Clarence Thomas whose wife was vociferously campaigning for the law’s repeal basically the day after it passed. What’s most striking about the entire ACA challenge is that the individual mandate was never on the kill-list of conservative legal minds when it was an idea devised by the Heritage Foundation and championed by the likes of Mitt Romney and Newt Gingrich. Back then, it was a clever free market solution to an intractable problem. It wasn’t until Obama and the Democratic congress actually made it a reality that the backlash began.
The real story of the ACA challenge then is that it highlights the right’s Obama-centric worldview. Similar to the Whigs resistance to Andrew Jackson, the Republican Party has basically become an entire political movement that simply stands in opposition to whatever it is the first African-American president tries to do, even if it means opposing reforms it once stood for.
(I'm also skipping over the Court's ruling on Medicaid expansion, which, if you want to read something good and wonky about the game of chicken states and the federal government are about to play, read Ezra Klein's analysis here.)
One last tirade: Republicans are trying to make hay that they will “repeal and replace” Obamacare. Romney stood in front of a placard with this slogan, and Marco Rubio, still the presumptive VP nominee, appeared on “The Daily Show” trumpeting “Republican ideas.” If you believe them, you do not understand the issue. Here is the key part of the Republican’s five-point “repeal and replace” plan straight from GOP.gov:
“Ensure Access for Patients with Pre-Existing Conditions"
“Health care should be accessible for all, regardless of pre-existing conditions or past illnesses. We will expand state high-risk pools, reinsurance programs and reduce the cost of coverage. We will make it illegal for an insurance company to deny coverage to someone with prior coverage on the basis of a pre-existing condition, eliminate annual and lifetime spending caps, and prevent insurers from dropping your coverage just because you get sick. We will incentivize states to develop innovative programs that lower premiums and reduce the number of uninsured Americans.”
(Usually I never use capitalized letters to make a point because that’s lame and hackneyed, but I will indulge in this one case.)