Like the hero in an old-time movie, Chief Justice John Roberts metaphorically untied Obamacare from the railroad tracks and, with four of his colleagues, pulled it away from the onrushing destructive force of his right-wing colleagues in the nick of time. In doing so he also saved President Obama from political disaster.
Alas, just like in the movies, the villains will soon be back.
While the next five months will determine whether the Court ruling upholding health reform was a victory or just a reprieve, the president has been plucked from the perils of a politically ruinous headline: “Signature achievement of constitutional lawyer president declared unconstitutional.”
In doing so, the Court showed why Americans hate the other guy’s lawyer and love theirs. Roberts embraced his inner reactionary by ruling that the individual mandate did not meet the requirements of the Commerce Clause — even though virtually all respected conservative jurists believe it does, and the conservative Heritage Foundation clearly believed it did when proposing the idea under a Republican president.
However, the Court avoided what would look like a political decision overturning the entire law by ruling that the penalty for not buying health insurance was a constitutionally permitted tax. Which made the law constitutional. Game. Set. Match. (Well, unless you were a poor person counting on an expansion of Medicaid. But if you’re poor, you should be used to losing.)
Don’t you love clever lawyers? At least when they’re on your side?
Although real conservatives are too afraid of their right-wing crazies to say so publicly, this is a victory for judicial restraint and for respecting precedent, Congress and the rule of law.
Which brings us to politics. The Court was careful to say it was ruling on whether the law was constitutional, not advisable. And while a conservative chief justice whose appointment Sen. Barack Obama opposed saved him from disaster, he did so by handing Obama’s GOP opponents a Supreme Court-approved club of “Big Taxer” to wield during the 2012 campaign.
What this ruling really gives Obama the opportunity to do is rediscover the benefits of politics, democracy and leading the American people. Remember, the flaws in the law are due in large part to Obama’s “let-Congress-do-it” during its drafting. The law’s hurried passage in the Senate, in turn, is due to the political emergency that arose when a Republican was elected to Democratic Sen. Ted Kennedy’s seat, in no small part due to the White House’s “let-Massachusetts-take-care-of-its-own-politics” stance. And the fact that a large part of the American public opposes “Obamacare” while an overwhelming majority favor all the major provisions of the Patient Protection and Affordable Care Act (its formal name) when talked about on their own is brutal evidence, as I have previously written, of how Obama botched and bungled the health reform message.
Just one anecdote from today’s TV coverage makes the point. Sure, Democratic Senate Majority Leader Harry Reid called the ACA “the greatest single step in generations” for affordable quality health care, while Republican Senate Leader Mitch McConnell called it “disastrous” for the economy and health care costs.
But pay closer attention to the CNN interview with Grady Memorial Hospital’s chief of staff, Dr. Curtis Lewis, who commented, “A lot of the people we’re serving will now get some coverage, which helps us continue with our mission.” And then, perhaps 10 minutes later, Republic Representative Phil Gingrey saying he can’t wait for the day when a President Romney “will grant waivers to all 50 states and territories against this monstrosity of a bill.”
Here’s the thing: both Grady memorial and Gingrey are from Georgia. Why have the people of Georgia not risen up against the anti-Obamacare ideologues? Where are the Republicans and Democrats who work in hospitals and in doctor’s offices, the Republicans and Democrats whose kids can’t get health insurance and who live in fear of losing their health insurance, the Republicans and Democrats who know that the bill has flaws but truly contains a generation of GOP and Democratic ideas?
Chief Justice Roberts wrote: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”
The GOP has made clear where it wants to lead the nation. After the Supreme Court ruling, President Obama has no one left to rescue him from a looming Republican majority in both Houses of Congress and the loss of the presidency itself.
In his speech to the American public, the president emphasized he pushed health reform not “because it was good politics; I did it because it was for the good of the country.” That’s a nice thought, which was followed by the same boring ACA talking points that got him in this fix in the first place.
The Supreme Court has thrown him out on his own. Not, it’s up to Obama to persuade the American people to pull him through. To do that, he must, once again, lead.
Michael L. Millenson is president of Health Quality Advisors LLC in Highland Park, IL; the Mervin Shalowitz, MD Visiting Scholar at the Kellogg School of Management; and a board member of the Society for Participatory Medicine.