Quick Take on the Supremes and the ACA

In the coming days there will be no end of commentary about the Supreme Court upholding the Affordable Care Act--foolishly called "Obamacare" by both proponents and detractors--in terms of both legal and political analysis. The early reactions are mostly predictable, and the media is running with the "elation among Dems, fury among Repubs" story and milking it for all it is worth.

At the Billy Rubin Blog, however, I'm not feeling so predisposed to shout mighty huzzahs in the face of the landmark ruling. Since I ain't a lawyer or a policy analyst, I can't comment on the ruling's legal aspects or how it will affect the coming elections. But this doesn't seem to be the Great Victory For Progressives that the mainstream media has already made it out to be. Sorry to rain on the parade, folks, but I'm inclined to think of this more like the Battle of Thermopylae: at best it's a rearguard action, and the odds of victory remain quite long since the opponents are determined and numerous. But I hate war metaphors, so ignore that particular piece of poetic excess.

I'm not so cheerful because a huge number of Americans--not millions but tens of millions--have no understanding of the ACA beyond the fact that it's a law and that most people refer to it as "Obamacare". Beyond this, they couldn't explain the law's contents in even the most cursory of fashions. Most, but by no means all, of those tens of millions of Americans are opposed to the law,  despite their broad support for the basic points of the law, as this recent poll demonstrates. Simply put, this means that far too many Americans are frightfully uninformed of even the most basic political issues, since this isn't some arcane matter requiring careful reading for months at a stretch (in the way that, say, the Eurozone financial crisis is). Though given that more than 60% of one thousand adults polled didn't think that Obama is a Christian, their inability to understand the ACA is no real surprise. It is difficult (impossible?) to have a functional democracy with this kind of ignorance.

I'm not so cheerful because this bill itself, the very bill that is being hailed by many Democrats as something akin to manna from heaven, is a generally crappy bill that was a far rightward compromise that left true progressives in a state somewhere between disappointed and appalled. Indeed, the "individual mandate" that Fox & Friends yowls about as being pure socialism was essentially invented in the offices of the conservative Heritage Foundation years before. Progressives wanted a single-payer plan: basically, Medicare for everyone. They were willing to settle for what became known as the "public option", where people could opt-in to government health insurance or get their own.

But that's not what they got--despite huge levels of support in the House and commanding levels of support in the Senate. In previous decades, when a majority of both the House and the Senate support legislation, and send it to a sitting President friendly to that legislation, a law gets passed. Only in this case that didn't happen: we got the individual mandate of the ACA because of a few allegedly "centrist" Dems and the fact that the Republican Party over the last generation has decided that--at least when it is not the party in power--Senate majorities must be sixty rather than fifty for a law to pass, and because the Democratic leadership is apparently so cowed by the Republicans that the bill shifted far to the right. Not that it ended up generating one single Republican vote in either chamber, but somehow the bill became a boon to the health insurance industry.

I'm not so cheerful because this President, for whom many of us had great hopes, has turned out to be not the socialist he's constantly accused of being by the imbecilic ranters of Fox and its ilk, but rather as one who starts out with centrist policies that get pushed ever rightward through various phases of acquiescence so that he may appear to be "above" mere partisan politics. We could easily substitute the President's name in this little one-off that describes outgoing Republican Senator from Maine, Olympia Snowe: "if [a Republican] proposed to spend one trillion dollars to erect a 100- foot-tall solid-gold Winston Churchill statue on Mars, [Obama] would no doubt decide, after careful deliberation, that the wise course was to trim the height down to 90 feet and perhaps use a cheaper bronze alloy in the base." Such is the "post partisan" approach of our President. He cut his stimulus package in half in order to entice three Republican Senate votes--votes which were utterly unnecessary for passage.

This man is not bold, he is not a shrewd negotiator, and we are stuck with him, or rather worse, for the next four years.

I'm not so cheerful because despite the fact that Constitutional Law scholars overwhelmingly agree that the ACA was constitutional and that the rationale for the challenge was weak, somehow the legality of the law was seriously in doubt, and most of those very ConLaw scholars figured the law would be overturned. When 90 percent of lawyers are in accordance that a law is both valid and likely to be declared unconstitutional, you are living in a country where significant chunks of the judicial branch are little more than formally robed hacks in service of a partisan machine, no more or less different than the judges who were part of Tammany Hall.

I'm especially not cheerful because the swing vote in this case was written by a man who is nearly certain to be under enormous pressure from various attachés of the Republican Party in the months to come for having deviated from the pre-defined script. And besides that, although I am no legal scholar, there was something quite peculiar in his holding: some think that Roberts is using this opportunity to forestall criticism of a string of highly partisan 5-4 future decisions such as the gutting of the Voting Rights Act among others; others still believe that Roberts's tepid support of (and perhaps switch to?) the majority will allow for a later successful challenge anyway.

Even though the law has just barely squeaked by, it is still very much in jeopardy. The House will almost certainly remain Republican, and the White House and Senate are up for grabs. My only political forecast of this column: if the Republican Party can win the Senate but lose the White House, expect the law to be repealed, followed by a veto, followed by an impeachment. Would that the Democratic party possessed such fierce determination and rigid discipline within its ranks.

That's the view from here tonight. As we are fond of saying at the Billy Rubin Blog: cheer up, the worst is yet to come.
--br