In the wake of the surprising Supreme Court decision Thursday morning on the constitutionality of the Affordable Care Act, the natural question is: what next for health-care reform?
One piece of background is all-important.
ObamaCare is RomneyCare.
The health-care reform plan that Mitt Romney proposed when he was Governor of Massachusetts and shepherded through the Massachusetts legislature with, as he used to boast, only two dissenting votes is the health-care reform plan that Barack Obama proposed in the first year that he was President of the United States and shepherded through the U.S. Congress with not a single Republican vote in favor. No Republican made audible complaint that RomneyCare was bad policy, or would destroy the economy, or whatnot--as long as it was the signature policy initiative of a Republican governor. When the same policy became the signature policy initiative of a Democratic president, however, every single Republican in office changed their minds.
For the most part, they claimed that they had not changed their minds. They said that when a state government required that people who are likely to wind up in the hospital at some point in their lives by insurance so that the cost of treating them would not fall on other patients or taxpayers, that was Good Small Government, an assertion of the Conservative Principle of personal responsibility people needed to accept responsibility for the consequences of their actions. but, they said, when a federal government requires that people who are likely to wind up in the hospital at some point in their lives by insurance so that the cost of treating them would not fall on other patients or taxpayers, that is Bad Big Government, an assertion of the liberal Nanny State principle that people needed for the government to boss them around, and unconstitutional.
Well, now the Supreme Court--a Supreme Court with a Republican-chosen majority of Thomas, Scalia, Alito, Kennedy, and Roberts--has settled the "unconstitutional" part.
IF (mandate="upheld") THEN:
Now it is time for all Republican officeholders to say that although the Supreme Court is not infallible, it is final, and that they will turn all their energies to making the implementation of what was President Romney's signature initiative when he proposed and implemented it as Governor of Massachusetts and will be President Romney's signature initiative when he implements it as President of the United States into a smashing and total success.
ELSE IF (insurance-provisions="upheld") THEN:
The Supreme Court has just broken RomneyCare. It has taken a delicate balance of countervailing policies that make up a very strong structure when all put together--the mandate to purchase insurance, guaranteed issue, community rating, and so forth--and kicked out one of its foundations. The remaining structure cannot stand, or cannot stand well.
However, the states can make it stand. The federal government cannot, so this Supreme Court says, regulate the interstate commerce that is health insurance to mandate purchase. Never mind that this decision is precedentless and lawless, going against the grain of at least 75 years of judicial doctrine and development. Ever since 1801 when John Marshall seized the opportunity to issue his decision in Marbury vs. Madison there has been precedent and law that the Supreme Court can, when it wishes, act contrary to established precedent and settled law--that the Supreme Court can turn itself into moral guardians seeking justice and political actors seeking the general welfare rather than mere judicial umpires calling balls and strikes. Yes, John Roberts lied about his role in his confirmation hearings. But that is not the point here. The point here is that the structure of RomneyCare--of the health-care reform plan established and advocated by both Mitt Romney and Barack Obama--is tottering, but that it can be fixed. It can be fixed by the states.
Each state should enact, on its own and for itself, the provisions of the Affordable Care Act that have just been carelessly broken by the Supreme Court. If states do this, then they will see themselves following the path of health-care reform marked out by, following the trail broken by health-care reform pioneer Mitt Romney in Massachusetts, and that is a good path, a good trail.
Those states that do not now act to fix the broken core structure of RomneyCare are putting the well-being of their small businesses, sole proprietors, and independent contractors at risk: their individual and small group markets may experience a moral-hazard meltdown. The likely outcome is that the states of the Northeast, the Pacific Coast, and pieces of the Midwest will step up to the plate, and will fix the parts of the ACA that the Supreme Court has broken. They will attach state-level backups to make the RomneyCare system function as designed.
Barack Obama will approve of this.
Mitt Romney will approve of this too--or, at least, is on record as approving of it. Back in July 2009, remember, Mitt Romney had no objections, neither technical-legal-constitutional nor substantive-policy objections, to a national mandate:
The lessons we learned in Massachusetts could help Washington…. The Massachusetts reform aimed at getting virtually all our citizens insured. In that, it worked…. [W]e established incentives for those who were uninsured to buy insurance. Using tax penalties, as we did, or tax credits, as others have proposed, encourages “free riders” to take responsibility for themselves rather than pass their medical costs on to others. This doesn’t cost the government a single dollar…. Republicans will join with the Democrats if the president abandons his [public option] government insurance plan…
And, back then, as Romney told Tim Russert, he thought that each and every state should enact an individual health-care mandate, which, he said:
is a terrific idea. I think you're going to find, when it's all said and done, after all these states that are laboratories of democracy get their chance to try their own plans, that those who follow the path that we pursued will find it's the best path, and we'll end up with a nation that's taken a mandate approach.
Nevertheless, in spite of both Barack Obama's and Mitt Romney's belief that each state would be well-served by passing an individual mandate to implement the conservative personal-responsibility principle, it is likely that the South, the Praries, scattered pieces of the Midwest, and Texas will fail to fix the parts of RomneyCare that the Supreme Court has now broken.
What can we do? Well, we can pressure the politicians of the South, the Praries, Texas, and their scattered bastions in the Midwest to do their jobs as Americans. Everybody who knows anything about health insurance should say, and say loudly, that those state-level politicians who do not fill in the gaps the Supreme Court has ripped in RomneyCare are destroying the ability of small businesses and solo practitioners and independent contractors to get the health coverage that they need.
Moreover, they should say that these politicians are doing this for short-term partisan political gain.
And maybe then the Republican politicians will become patriots first and partisan obstructionists second--or will at least realize that it is to their electoral advantage not to appear to be the partisan obstructionists they wish to be.
The Supreme Court has just sent us back to square one as far as fixing our broken private health-care system is concerned.
This is truly extraordinary. Five times in U.S. history the Supreme Court has eaten its wheaties and said that in the future the law will, in a major way, be very different than it had been before. The first was Marbury vs. Madison: the Supreme Court's 1803 assertion of the power that it was going to be the final arbiter--that its decisions about what the Constitution meant would be the ones that stuck. And there have been a bunch of others. These are the Supreme Court's Constitutional Moments
In all previous Constitutional Moments, the stakes were political, but the stakes were also large, and the stakes were substantive, and the stakes were fundamental. The issue was about what kind of country we were going to be. Marbury vs. Madison was about whether the Supreme Court was going to be another anti-majoritarian brake on the powers of legislative majorities that were possibly transient. Lochner was about whether freedom of contract--or freedom to exploit--was going to be a core right. The Switch-in-Time-that-Saved-Nine was whether social democracy would come smoothly or would require an economic-regulation constitutional amendment. Brown-vs.-Board-of-Education-of-Topeka was about whether we would remain a country of racial apartheid.
This Constitutional Moment we have just seen is the first one in which the stakes are purely partisan, and purely political. Had Mitt Romney won the 2008 presidential election, every single Republican legislature who voted against RomneyCare when it was proposed by Obama would have voted for RomneyCare when proposed by Romney. And every single Supreme Court justice who has just voted to strike down RomneyCare would have been a comfortable vote for RomneyCare--had it been proposed by Romney. This is the dirty little secret of what just happened: Bush vs. Gore, Citizens United, and now the ACA--we have an out-of-control Supreme Court majority who are all busy violating their oaths as judges as much as they dare. We understand when judges say that the law says X, but justice requires Z, therefore I say Z. We do not understand the judges who have today said that although law and precedent say X, my partisan political loyalties and those alone impel me to say Z.
This Supreme Court is hopelessly broken. It needs to be fixed as fast as possible. And the best way to fix it is to reelect President Obama, and give him a reliable majority in the Senate and a reliable majority in the House to choose judges who will keep to their oaths of office.