During my nearly ten years of practicing law, I repeatedly was reminded that every trial has its own dynamic and that someone not part of that trial, who was not present for the entire proceeding, was usually clueless in trying to predict the result. Today’s Supreme Court decision upholding the Constitutionality of the Affordable Care Act confirmed that the same applies to appellate proceedings. After the oral arguments in March, seemingly no one, me included, had any hope that the entire bill would be upheld. Victory was redefined to preserving the non-mandate portions of the bill since the mandate was Constitutionally terminal. Or so it seemed.
Chief Justice Roberts fooled the prognosticators by siding not with his conservative brethren but with the four liberal justices to uphold the constitutionality and he did it by cutting through all of the fluff and the spin and telling the truth: the individual mandate is authorized not by the Commerce Clause but by the power to tax because at its core, the consequence of not obtaining health insurance is to pay a higher tax and that’s OK for Congress to do.
Today was rich with irony. Why did Chief Justice Roberts side with the liberal wing of the court? I’m sure he voted as he felt the facts and the law required but to the extent he may have been subconsciously influenced by anything, he might have feared that the complete destruction of the bill – the position taken by the four conservative justices in their dissent – could have so cemented the growing public perception that the current court was driven not by jurisprudence but by the personal political ideologies of the justices, that the court’s legitimacy might have been irreparably harmed.
A similar situation existed back in the early days of the New Deal. After a five justice conservative block struck down measure after measure of the New Deal, Franklin Roosevelt proposed his famous “court packing plan” which would have expanded the size of the court. Roosevelt’s proposal failed but in the very next case one of the conservative justices, ironically named Roberts (Owen) began voting to uphold New Deal legislation in the famous “switch in time that saved nine.”
Notwithstanding Chief Justice Roberts motivation whatever that might have been, I believe today’s decision significantly shifts the political dynamic. Those who have always supported the bill are relieved and those who condemn it will be re-energized in their fight against it. But that small slice of the American populace that’s on the fence about the bill (and probably also on the fence about who to vote for in November) will now view the bill in an entirely new light. Had it been a solidly liberal court that upheld the bill there would have been little effect; but this court has been anything but liberal. That this court with its track record ruled this bill Constitutional will carry great weight with the undecideds who might now cast aside all the hyperbole and scrutinize the measure’s components. And when that happens – when people understand that the Affordable Care Act keeps their kids on the family insurance plan until age 26; that they will not be denied coverage for pre-existing conditions; that if they get laid off, they’ll be able to get affordable coverage from insurance exchanges; and on and on and on – people like the bill and support it.
One reason the import of the Affordable Care Act is somewhat muted to us here in the Commonwealth is because we already have most of those provisions because of our own 5 year old Massachusetts health reform law. We like them very much and they work very well. Now that the Constitutionality of the Affordable Care Act is beyond question, national scrutiny will focus on our experience in Massachusetts and one of its prime architects, Mitt Romney. Because the national bill is almost indistinguishable from the Massachusetts program, Romney’s verbal gymnastics in attempting to distinguish the two, not in any minimalist way but as a black and white difference, will negatively impact our former governor’s credibility.
Several years ago I collaborated with a graduate student from Israel on a real estate research project. As his academic work came to an end, he contemplated transitioning to being a self-employed computer consultant and solicited my advice. I immediately asked “where would you get health insurance?” which caused him to look at me in befuddlement. Finally he said, “I’m sorry, but I’m from a country where when you are born you are issued a card and for the rest of your life, anytime you need medical care all you have to do is present that card and you get the needed treatment so the American system of health care coverage makes no sense to me.” Our current patchwork system of health insurance, at least as it existed nationally prior to the Affordable Care Act, does make no sense. Beyond that, it’s a substantial drag on our economy. The Affordable Care Act doesn’t completely fix all that, but it is a huge step in the right direction. For that reason, today’s decision upholding the Constitutionality of the Affordable Care Act will long be seen as one of the most significant in the history of the US Supreme Court.