The Umpire Strikes Back
There has been little reason for progressives to be excited about this court, which has seemed to be as partisan as Congress. I'm convinced Antonin Scalia makes his decisions based on politics, then works his way to an opinion to suit his decision, even when he constantly contradicts himself. His jeremiad against President Obama's decision on illegal alien children and young people during his dissent in the Arizona immigration case sounded like the text of a panel discussion on the Sean Hannity show. Thus it seemed unlikely, unless Anthony Kennedy could be swayed, that the president's signature legislation would survive intact.
Therefore it was stunning, if not miraculous, that the law did survive, almost entirely unscathed, and that it wasn't Kennedy, the man in the middle, that saved it. No, Kennedy savaged it, saying the whole thing should be scrapped. Instead it was Chief Justice John Roberts, who never met a business he didn't like, that stood up for the law (albeit using some legerdemain) and may have insured Obama's legacy.
I've never held much love for Roberts. During his confirmation hearing, he talked about a justice being like an umpire, deciding cases on the facts. They did not make the rules, they interpreted them. I've always assumed Roberts was blowing smoke--the infamous Citizens United case overturned over a century of precedent--but by golly this time he said some awfully smart things. It is not the court's role to comment on the wisdom of a law, but whether or not it is constitutional, and to defer to Congress to find the way that it can be constitutional.
Roberts did not agree that the individual mandate, which forces people to pay a penalty if they do not buy health insurance, was applicable under the Commerce Clause. Instead he found the penalty is a tax, which Congress is able to due under their powers granted in the Constitution. Of course, Obama pointed out that it was definitely not a tax, because the man isn't stupid, but I'm sure Obama will take it. His speech yesterday to the American people had the aura of a man who feels like he got away with something, and wanted to move on before it got taken back.
As for this tax, and the exultations of derision from the right, I don't get the problem. It's a tax only if you don't buy health insurance, so it's sort of like a vice tax, like the one on cigarettes and liquor. If you have health insurance, as about 98% of Americans will, under this law, you won't have to pay it. Those who pay it will be paying for the law itself, and maybe will realize that it's in their best interest to have health insurance. It will hurt some small businesses, as any business with over 50 employees will have to provide health insurance for their employees, but I think the rights of those workers trump the business needs.
The response from the right is downright comical. The decision has been compared to Dred Scott and 9/11. If they are to be believed, we are now in a police state and the IRS is Obama's army. Freedom took a big blow. Freedom to do what, I don't know. I'll never get why some people are so angry about poor people getting health care. I think it's a pathological and irrational fear that somehow they will lose all their money to black and brown people who don't deserve it. There have also been some rending about Roberts, the right accusing him of betrayal and even calling for his impeachment. There's no cause for impeachment, but I wouldn't fight it, especially if Obama gets to replace him.
Mitt Romney, in his usual but still stunning obfuscation of his own career, says he will repeal it on the first day of his presidency. Of course he can't do that, not unless Congress repeals it, and it would take 60 votes in the senate to do it, which is highly unlikely. He says he will make it a capstone in his campaign, which may work, but I doubt it. People want jobs and a better economy, and boo-hooing about a law that is now settled will seem regressive. Some pundits, and I agree with them, think this will be a forgotten issue by November. Besides, Romney really likes this law. He agrees with every major provision, except the mandate, which of course was central to the health care plan he pushed as governor of Massachusetts. The man's hypocrisy is incredible.
What's most important is that the United States has taken a big step in fixing one of the worst health-care systems of the industrial world. That 30 million people do not have insurance, and use the emergency room as a doctor's office (which is passed on to the taxpayer) or don't see doctors at all, is shameful. The Republicans, under eight years of George W. Bush, never put forth their own idea. I think that time goes by, this Act will come to be as basic and welcomed as Social Security, unemployment insurance, and Medicare. Time will prove that Roberts made the right call.
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