The Supreme Court ruled – the Affordable Care Act, sneered at as Obamacare by the right, is constitutional. Even the individual mandate, penalizing freeloaders who don’t buy insurance but can show up in any emergency room and receive care, at no cost to them but a great cost to the rest of us, is constitutional too – it’s just that it’s constitutional under the taxing authority of Congress, not under the provisions of the Commerce Clause – as if that matters. Now the Affordable Care Act is the law of the land. There’s nothing more to argue about. This was argued about in the town hall meetings of 2009, with all the shouting and screaming and weeping and all that talk of those Death Panels that would order the execution of harmless little granny, as this was socialized medicine and the end of America and all the rest. And then it went to the House and Senate, and the Republicans never had the votes to stop it cold in its tracks. They hated it, but there weren’t enough of them to do the job. Elections do matter, and finally President Obama signed the thing into law.
Yes, that should have been the end of it, but state after state – the red ones – challenged the new law. Some district courts agreed with them, that the Affordable Care Act, or at least the individual mandate, was unconstitutional, while others told them no, it seemed to be quite constitutional. So this had to go to the Supreme Court, packed with conservatives appointed by Bush and Bush, pretty much the same Supreme Court that had stopped the Florida recount cold and had declared the second Bush president, not Al Gore, who actually won the popular vote. The Republicans thought they had a good shot to stop it all, what must have seemed like a reasonable chance to them, but they lost there too. Antonin Scalia and Clarence Thomas, whose wife ran a large Tea Party operation with the sole purpose of defeating the thing, didn’t carry the day. Chief Justice John Roberts, the man appointed by the second George Bush, and who had authored the Citizens United ruling, allowing the Koch brothers and Sheldon Adelson and all of Karl Rove’s billionaire friends to spend hundreds of millions a week to sway public opinion in elections at all levels, handed Obama a stunning victory, authoring the ruling that Obamacare was entirely constitutional. He didn’t say he liked it, or that it was wise – it was simply something Congress had the right to do, and they did it. Case closed. And there’s no other court of appeal, no higher court. It’s over. Let it go. Move on.
But the Republicans won’t move on. It wasn’t fair. It wasn’t right. Rand Paul even said this – “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional.”
There was a bit of talk about that – Rand Paul seems to have slept through eighth-grade Civics and eleventh-grade US History – but Romney has vowed to repeal the Affordable Care Act if he becomes president, although no one is sure how he can pull that off. And from Senate Minority Leader Mitch McConnell there’s also this –
Pressed by Chris Wallace to say what he would do to insure the 30 million people who will get insurance under Obamacare, McConnell at first dodged the question, instead launching into a litany of complaints about the law. He repeated the debunked claim that it would cut $500 billion from Medicare. Asked the question again by Wallace, McConnell actually laughed, and said he’d “get to it in a minute,” before claiming the best thing we can do for the health system overall is to get rid of the law and all of its “cuts” to health providers. He labeled Obamacare a “monstrosity” and vowed that there would not be a “2,700 page” Republican reform bill.
Asked a third time how Republicans would insure those 30 million people, McConnell said: “That is not the issue.”
He was upset. The poor and the elderly are not the issue. Obama winning something seems to be the issue. That should not have happened, and thus see Sahil Kapur with The Right’s Top Five Theories for John Roberts’ Betrayal:
1) John Roberts caved to the left-wing media
2) Sen. Patrick Leahy had a mole in the court
3) Roberts was cowed by President Obama’s 2010 State of the Union
4) Roberts wanted love from the D.C. establishment
5) Republicans stink at picking Supreme Court justices
Kapur has links to the details of all those arguments, and notes that at National Review Online, Avik Roy offered a solution – “Perhaps, the next time a Republican president nominates a Supreme Court justice, he should make the candidate swear to never pick up a newspaper.”
He may not have been kidding, and Kapur offers this:
The upshot of these counter-narratives for why Roberts decided the case the way he did has the effect of delegitimizing the court’s decision. Proponents of the law didn’t win on the merits, the thinking goes. They won because of an unfair advantage: external pressure that trumped the legal considerations that should have dictated the outcome of the case. It’s an early indication that the right’s reaction to losing may be to tear down the court and their one-time legal savior John Roberts.
But the fact remains that they lost, and that puts them in an odd position. Now they have a problem with normative behavior in American culture. There’s the expected appropriate behavior from someone who definitely and definitively lost. You don’t whine and say it wasn’t fair and it wasn’t right. You don’t vow to ruin everything and bring the whole house down if you cannot change what has been decided. When the Florida recount was stopped and Bush was declared president, not Gore, the smug Republicans told the appalled Democrats to get over it and just move on. And they were right. The Democrats, for the most part, understood that and did move on. There were other battles to fight. What’s done is done. Heck, even Chicago Cubs fans always end up saying wait until next year – they don’t dwell on what might have been, or ask that the last season be replayed. It won’t be, and there is always next year.
But here’s an interesting bit of video:
CBS News correspondent Norah O’Donnell faced off with House Speaker John Boehner in a contentious interview that focused on the Supreme Court’s ruling upholding the constitutionality of the Affordable Care Act and what the Republicans’ alternatives are. O’Donnell repeatedly pushed Boehner to say specifically what he likes and dislikes about the law, and asking him point-blank, “when you repeal it, what are you going to replace it with?”
He had nothing, and said some parts of the new law were fine, as ideas, but offered this:
O’Donnell told Boehner that if there are some parts of the law that he likes, why can’t he just work together with the president on health care reform instead of pushing for repeal? Boehner insisted that in order for real reform, the current law needs to be “ripped out by its roots” and Congress should start over.
Will that play well? After all, there’s this:
Although the Supreme Court upheld ‘Obamacare’, the ruling complicates an important element of the law by making the Medicaid expansion optional for states. States will no longer risk losing all their Medicaid funds if they opt out of the expansion, which is projected to cover some 17 million low-income people.
Most states will be hard-pressed to turn down the infusion of federal funds to help cover their uninsured residents, despite incurring new costs down the road. But Republican governors face a genuine political predicament because if they accept the Medicaid expansion, they open themselves up to potentially resonant right-wing attacks for buttressing ‘Obamacare.’
Screw those seventeen million low-income people – Iowa and Florida and South Carolina and Missouri and Wisconsin and Louisiana and Kansas won’t take the money. Those low-income losers can do without healthcare, as it’s the principle of the thing. And these states won’t set up insurance exchanges either, to allow small business and individuals to find carriers. They simply won’t comply with that part of the new law – and all this may kill their hospitals, which will have to treat many more uninsured walk-ins in the emergency room soon – but screw the hospitals too. These Republican governors will be admired by their base. Obama will not have won. No one knows if Texas will turn down seventy-four billion more in Medicaid funding. The big world-class hospital systems there – Baylor and the rest – may twist a few arms in Austin. Rick Perry may be in a pickle.
Be that as it may, presumably this is a winning strategy for these folks – at least they seem to think so.
They might want to think again:
The Supreme Court ruling on health care did not win the law new supporters – but, in a new Kaiser Family Foundation poll, it does look like Americans want to see the national debate move past the law.
Fifty-six percent of all those surveyed want to see the law’s opponents “move on to other national issues” rather than “continue to block the law from being implemented.”
The message – get over it:
This poll won’t thrill Republicans. In the aftermath of the Supreme Court ruling, they quickly pivoted to measures to stall Obamacare. Some are symbolic: A House vote to repeal the health reform law, scheduled for next week, is dead-on-arrival in the Senate. Some, like Republican governors opting out of the Medicaid expansion, are more concrete.
All of them though, are intended to do one thing: Make the future of health reform appear in limbo, part of a continuing debate over the law.
This Kaiser poll suggests that’s not how most Americans see the issue. Even though a lot of people don’t like the law – only 41 percent rated it favorably in this same poll – it looks like most see it as the law of the land going forward.
But this detail is even more interesting:
One other noteworthy finding from the Kaiser poll: It found 41 percent of Americans to be unaware of the Supreme Court decision. That isn’t due to any dearth of news coverage. The decision story was front page news Friday pretty much everywhere in the country. But most Americans won’t notice the benefits until 2014, when 30 million gain coverage through Medicaid and private insurance. Until then, health reform isn’t something most Americans are obsessing about. And they think Washington should follow their lead.
The Republicans are all alone here. No one cares, and there was this item in CNN-Money:
The Supreme Court’s decision on health reform brought a sigh of relief from small businesses. Whether they love or hate the new rules, they like certainty.
They could draw up business plans for next year. They could choose to hire or not.
Now, talk of repeal by Republicans in Congress and presidential candidate Mitt Romney is causing concern.
Until recently, Dan Martin had little positive to say about President Obama’s health reform law. Although his tiny San Diego tech firm, IFX, already provides employees with health insurance, he worried the law would unleash burdensome regulations.
Then he discovered the law brings no added rules to companies with fewer than 50 employees, and gives them a new option to do comparison shopping for health insurance on state exchanges starting in 2014.
In essence, it’s all over, and the result isn’t that bad, and he, and perhaps many others, don’t appreciate the Republicans stirring the pot:
“As a business owner, I can make decisions based on knowing what I’m dealing with – good or bad. I can suck it up and map out my pricing strategy,” Martin said. “Being in limbo is the worst thing to be in. I can’t build my business strategy on the possibility the law could be rescinded.”
The tables have turned. The Republicans have talked endlessly about how “uncertainty” is killing American businesses. Now they’re the ones causing it.
Chief Justice Roberts really did upset the applecart here, and Andrew Sullivan comments:
It’s not that we now have a reprieve for the idea of universal healthcare in the US. Or even that we have an interpretation of the Commerce Clause that could eventually mean some non-trivial ratcheting back of the federal government’s powers vis-a-vis the states. It is that a creature of the conservative movement, one of its youngest and most intelligent stars, saw the radicalism of the four dissenters … and balked.
He balked, it appears, because of his attachment to the court as an institution, because he was unwilling to trash its reputation by embroiling it in a deep and bitter partisan grudge-match in the middle of a presidential campaign – when there was a plausible way out. He was also applying the logic of judicial restraint with respect to legislative wishes, interpreting the law to be as constitutional as it could possibly be deemed (i.e.in this case, viewing the mandate as part of the Congress’s tax power). In these two ways, Roberts upheld a form of conservatism that is not synonymous with the interests of the Republican Party at any given moment.
Yes, it has come to this:
One of the most strikingly anti-conservative aspects of today’s allegedly conservative movement, after all, is its contempt for institutions, especially elite institutions that in any way limit the scope of fundamentalist ideology. And so Newt Gingrich’s crucial innovation was throwing out the politeness and manners and decorum and rules and traditions of the House of Representatives in order to gain power by populist demagoguery. You can see his legacy in Tom DeLay’s implementation of the Medicare D entitlement under Bush, an essentially lawless and rule-free process that made a mockery of parliamentary procedure. You saw this contempt for the rule of law, if it got in the way of desired policy, in the torture policy under Bush, cynically making the patently illegal “legal” through cynicism and double-speak.
Similarly, McConnell’s use of the filibuster is essentially a display of contempt for the American constitutional system, rigging the system to nullify legislative majorities and to conduct politics as a zero-sum war for power, rather than as a means to debate, discuss and implement necessary changes in an evolving society. The give-and-take of American constitutionalism has been essentially reduced by the GOP in the last two decades to take-and-take-some-more. They impeached one successful president, in an act so disproportionate to the offense (and the offense was real; Clinton was a shameless perjurer) that it helped gut any bipartisan functioning of an institution designed for deal-making across the aisles or within them. They treated the 2000 election, when Bush lost the popular vote, as a landslide mandate election – again with no deference to the other side or sense of governing as one nation.
Sullivan suspects Roberts was appalled by it all:
After Bush v Gore and then Citizens United, I think Roberts saw the full political and constitutional consequences of a radical Court vote to gut the key legislative achievement of a duly elected president and Congress. In other words, he put the institutions of American government before the demands of partisan power-mongering. And he deftly nudged the issue back into the democratic process, where it more comfortably belongs.
And now something has changed:
The “movement right” is still furious at Roberts, pushing Romney as the principle-free instrument of their next round of institution-smashing (Medicare). But that a conservative placed the country’s institutional stability before ideological fervor is so rare at this point it deserves some kind of praise. It’s a start. If the GOP is beaten this fall, it may even be seen as the moment the tide began to turn, and conservatism began to reach back toward its less feral traditions and ideas.
And, as always, Sullivan prefers the conservatism of Edmund Burke and the rest, the real thing:
Conservatism is, after all, a philosophy that tends to argue that less equals more, that restraint is sometimes more powerful than action, that delay is often wiser than headlong revolution. It reveres traditional rules and existing institutions, especially endangered elite institutions that the Founders designed to check and cool the popular will. Roberts took a small step toward resuscitating that tradition last week.
Sullivan doesn’t seem to like the smash-it-all sore losers now vowing to tear down the house to force a result they could not otherwise get, and Sullivan is not alone:
Jonathan Krohn took the political world by storm at 2009’s Conservative Political Action Conference when, at just 13 years old, he delivered an impromptu rallying cry for conservatism that became a viral hit and had some pegging him as a future star of the Republican Party.
Now 17, Krohn – who went on to write a book, “Defining Conservatism,” that was blurbed by the likes of Newt Gingrich and Bill Bennett – still watches that speech from time to time, but it mostly makes him cringe because, well, he’s not a conservative anymore.
He said he was naïve:
I live in Georgia. We’re inundated with conservative talk in Georgia.… The speech was something that a 13-year-old does. You haven’t formed all your opinions. You’re really defeating yourself if you think you have all of your ideas in your head when you were 12 or 13. It’s impossible. You haven’t done enough.
Now he doesn’t consider himself a conservative, or a liberal, but there are signs:
Gay marriage? In favor. Obamacare? “It’s a good idea.” Who would he vote for (if he could) in November? “Probably Barack Obama.” His favorite TV shows? “The Daily Show” and “The Colbert Report.” His favorite magazine? The New Yorker. And, perhaps telling of all, Krohn is enrolling this fall at a college not exactly known for its conservatism: New York University.
Note also that the first thing he stopped being was a social conservative:
It just didn’t seem right to me anymore. From there, it branched into other issues, everything from health care to economic issues.… I think I’ve changed a lot, and it’s not because I’ve become a liberal from being a conservative – it’s just that I thought about it more. The issues are so complex – you can’t just go with some ideological mantra for each substantive issue.
Then he made the mistake of reading philosophy, Wittgenstein, Kant and that sort of thing:
It was really reading philosophy that didn’t have anything to do with politics that gave me a breather and made me realize that a lot of what I said was ideological blather that really wasn’t meaningful. It wasn’t me thinking. It was just me saying things I had heard so long from people I thought were interesting and just came to believe for some reason, without really understanding it. I understood it enough to talk about it but not really enough to have a conversation about it.
And now he wants to move on from what happened in 2009 at that conservative convention:
“Come on, I was thirteen,” he said. “I was thirteen.”
And what is John Boehner’s excuse, or Mitt McConnell’s, or all those Republican governors? There’s the expected appropriate behavior, the normative behavior, from someone who definitely and definitively lost. You don’t whine and say it wasn’t fair and it wasn’t right. You don’t vow to ruin everything and bring the whole house down if you cannot change what is already finished and done and cannot be changed. You move on.
And when all those small businesses tell you to move on, so they can go about making money again, and the polling shows the American people wonder what you’re talking about and wish you’d move on, maybe it’s time you just grew up and let it be. The Democrats did get over the Florida recount mess after all. It’s not that hard. Even your base may understand one day. And everyone knows that thirteen-year-olds can be really irritating.
Or you can run on being a spoiled whining brat and a bully. It’s just not recommended. Everyone else has moved on.