This week a majority of the Court upheld the constitutionality of the Affordable Care Act, otherwise known as Obamacare in recognition of its importance as a key initiative of the Obama administration. The big surprise, for many, was the vote by the Chief Justice of the Court, John Roberts, to join with the Court's four liberals.
Roberts' decision is not without precedent. Seventy-five years ago, another Justice Roberts -- no relation to the current Chief Justice -- made a similar switch. Justice Owen Roberts had voted with the Court's conservative majority in a host of 5-4 decisions invalidating New Deal legislation, but in March of 1937 he suddenly switched sides and began joining with the Court's four liberals. In popular lore, Roberts' switch saved the Court -- not only from Franklin D. Roosevelt's threat to pack it with justices more amenable to the New Deal but, more importantly, from the public's increasing perception of the Court as a partisan, political branch of government.
Chief Justice John Roberts isn't related to his namesake but the current Roberts' move today marks a close parallel. By joining with the Court's four liberals who have been in the minority in many important cases -- including the 2010 decision, Citizen's United vs. Federal Election Commission, which struck down constraints on corporate political spending as being in violation of the Constitution's First Amendment guaranteeing freedom of speech -- the current Justice Roberts may have, like his earlier namesake, saved the Court from a growing reputation for political partisanship.
As Alexander Hamilton pointed out when the Constitution was being written, the Supreme Court is the "least dangerous branch" of government because it has neither the purse (it can't enforce its rulings by threatening to withhold public money) nor the sword (it has no police or military to back up its decisions). It has only the trust and confidence of average citizens. If it is viewed as politically partisan, that trust is in jeopardy. As Chief Justice, Roberts has a particular responsibility to maintain and enhance that trust.
Nothing else explains John Roberts' switch -- certainly not the convoluted constitutional logic he used to arrive at his decision. On the most critical issue in the case -- whether the so-called "individual mandate" requiring almost all Americans to purchase health insurance was a constitutionally-permissible extension of federal power under the Commerce Clause of the Constitution -- Roberts agreed with his conservative brethren that it was not.
Roberts nonetheless upheld the law because, he reasoned, the penalty to be collected by the government for non-compliance with the law is the equivalent of a tax -- and the federal government has the power to tax. By this bizarre logic, the federal government can pass all sorts of unconstitutional laws -- requiring people to sell themselves into slavery, for example -- as long as the penalty for failing to do so is considered to be a tax.
Regardless of the fragility of Roberts' logic, the Court's majority has given a huge victory to the Obama administration and, arguably, the American people. The Affordable Care Act is still flawed -- it doesn't do nearly enough to control increases in healthcare costs that already constitute 18 percent of America's Gross Domestic Product, and will soar even further as the baby boomers age - but it is a milestone. And like many other pieces of important legislation before it -- Social Security, Medicare, Civil Rights and Voting Rights -- it will be improved upon. Every Democratic president since Franklin D. Roosevelt has sought universal health care, to no avail.
But over the next four months the Act will be a political football. Mitt Romney, the Republican presidential candidate, has vowed to repeal the law as soon as he is elected (an odd promise in that no president can change or repeal a law without a majority of the House of Representatives and sixty Senators). Romney reiterated that vow this morning, after the Supreme Court announced its decision. His campaign, and so-called independent groups that have been collecting tens of millions of dollars from Romney supporters (and Obama haters), have already launched advertising campaigns condemning the Act.
Unfortunately for President Obama -- and for Chief Justice Roberts, to the extent his aim in joining with the Court's four liberals was to reduce the public appearance of the Court's political partisanship -- the four conservatives on the Court, all appointed by Republican presidents, were fiercely united in their view that the entire Act is unconstitutional. Their view will surely become part of the Romney campaign.
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I think we get confused when we succumb to the temptation to take seriously the personalities and soap opera that is thrown at us. There is a lot more collusion and felicity among Democrat and Republican leadership than we are led to believe.
I don't buy that "Republican obstruction" could ever have occurred to the extent it has without tacit help from Democratic leadership.
As for "heartless", in our own interest as liberals, we need to have cool heads and realize that we are all being manipulated, North and South, right and left. Tea Party and their far more sedate and far more numerous sympathizers see themselves as looted and taken advantage, not heartless.
It is a divide and conquer game, we get every bit as much of it from the White House and Democratic leadership and supposedly friendly news media, as Republican flunkies dish out.
Liberals are very foolish if they think they aren't just as susceptible to "spin" as other folks.
Oh, right: THEY DON'T HAVE ONE!!!
So yes, if your health costs doubled that would be bad, but there's no evidence for that.
By the same token if you SAVED 30%-50%, as the data suggest you will, that would be great.
So if you care about the budget, you should be a big supporter of public health.
So, we just graft universal coverage onto our for-profit system, and wait and see, the cost will double - not necessarily the individual cost, but the total cost, and the total cost is what affects the budget.
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It strikes me that Roberts might have voted with the conservatives, however, except for their refusal to back off the position of ruling the entire law unconstitutional. Perhaps if the other conservatives had been willing to declare the individual mandate unconstitutional, while leaving the rest of the bill intact, Roberts may have decided to side with them. Failing to do that, Roberts may have been looking for middle ground - a reason to let the law go into effect, but leaving the perogative of Congress to determine taxation.
Truer words have never been written.
The Republicans will definitely show up at the polls in November and vote...many of them who still view themselves as "middle class" will even show up and vote against their own economic self interests. This is a phenomenon that I simply cannot and will never understand. This is tantamount to masochism. Those oligarchs, corporatists and plutocrats in the top 1 percent are spending hundreds of millions of dollars to tighten the noose around this nation's collective neck.
The "haves" have the dollars, but the "have nots" still have the "numbers". And those "numbers", if we all turn out to vote for candidates that still have the people's interests at heart rather than being hood winked by the likes of the Koch boys, Karl Rove, Dick Armey, Grover Norquist, and other fellow travelers, etc will win the day..
Our vote is the last bastion of power to regain control of this nation.
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Even thought the " have nots" have the numbers (votes) ~ we can be usurped simply by the deluge of post Citizens United mega bucks ( channeling J Goebbels ) and the rest of the stinking, lying, greedy, we want it all goose stepping hate mongers - who know the power of the written, spoken & visual word.
We can only hope that somehow - somebody can submit a obvious truth - so valid and obvious - that the maroons will reawaken and rejoin us in honest and sincere debate as to how we can move our great nation forward before ~ they reach the Kool Aid line.
It occurred to me that there might be a way to predict the outcome with the following equation:
(Insurance Lobby) + (Justices' legacy) - ('get' Obama) = ACA stands
The tie-breaker, here, between the desire to please the insurance lobby by voting it up, on the one hand vs. 'getting' Obama, i.e., supposedly damaging him in typically Republican fashion by voting it down, was avoiding a grossly tarnished legacy.
That was when I stopped worrying that they would kill it to spite Obama.
Personally, I am for term limits on Justices. Making this a lifetime appointment gives them too much power, and very little accountability.
Chief Justice of the Court, John Roberts - voted with liberals, so the majority of Americans will vote out Obama and the liberal Senate - because having the Federal Government not only in charge of healthcare, but dictating the prices is a complete disaster.
Mr. Reich, this is bizarre logic. First is the silly idea that Congress can pass a law that requires slavery when the Constitution prohibits slavery. Congress can't pas a law that violates the Constitution. Second, it is a good thing that this decision does in fact lay the foundation for a real and necessary socialism through the exercise of the taxing power. If providing health care is a national priority it is good that the Government can tax people to make it so. Likewise, if the Government--we the people--believe that it is a good thing to fight forest fires, then we can tax ourselves to do that... oh wait, we already do that. See? We already use the taxing power to exercise the will of the people for the good things that the people want. So what's the problem with this decision simply acknowleging that the people through their Government can provide for the General Welfare? That is what the Constitution provides after all.
I did NOT expect Roberts to run with that, though.
In my view, the law could have been edited oh so very slightly - mostly just renaming things - and it would have been fine, but it wasn't written correctly and should have gone down. Now that Roberts has saved it, it's a mixed blessing. I hope this is the beginning and not the end (as I fear) for Single Payer.
We need to end this farce in Washington and introduce an old concept call equality and fairness. We need Justice in our healthcare, we need someone like Rocky Anderson to implement Medicare for all.
Your assertion assumes things not in evidence....like a broad-based desire in Congress to make sure all citizens are covered, like a desire - a real desire - to bring healthcare costs under control, like the acceptance of the need to abandon the so-called 'free market' in health care, like the desire to take profit out of our health care system.
We are light years away from these serious changes.