If conservative Supreme Court justices are determined to overturn the Patient Protection and Affordable Care Act (ACA), then why not look to the Court’s famous ruling on school desegregation for what comes next? Couple the declaration that the signature legislative achievement of the nation’s first black president is unconstitutional with the enforcement urgency that followed Brown v. Board of Education in 1954.
In other words, tell the federal government to dismantle the ACA with “all deliberate speed.” Given the history of how putatively law-and-order Southerners responded, that should give health reform breathing room until at least the middle of the 21st century.
There are similarities between Brown and the ACA case. Both are rooted in controversies over state versus federal power and both, coincidentally, involve Kansas. In Brown, it was the Topeka Board of Education that said the Constitution allowed it to maintain separate schools for whites and blacks. In the ACA, it’s the Kansas state attorney general who has joined with 25 others to say that the Constitution protects state from having to expand the Medicaid program for the poor.
Brown was a landmark ruling that initially prompted little concrete change. When civil rights advocates returned to the Supreme Court in 1955 seeking better enforcement, the Court set a standard of “all deliberate speed” that in effect winked at much deliberate disregard. It wasn’t until 1969, in Alexander vs. Holmes County Board of Education, that the Court ruled that desegregation had to proceed immediately.
