Borrowed Thoughts on the Obamacare Ruling

I'd been holding back on posting on the Supreme Court's upholding of the Affordable Care Act, both because it's too hot to think around the Darwin house at the moment, and because I'm a non-expert on constitutional law and found most initial responses dispiritingly knee-jerk. Around Facebook (which since I'm reading Alistair Horne's history of the Algerian war, I'm picturing as a kind of French flash-mob of political opinion) the general consensus among my mostly conservative friends seemed to be that this was the day on which the US Constitution died. Given some of the amazingly bad Supreme Court decisions in our history (Dredd Scott, Roe v. Wade, Buck v. Bell, etc.) a ruling that congress can fine people (if we call it a tax) for not buying health insurance doesn't exactly strike me as rating among the top travesties.

Other conservatives (and apparently some progressives) have spun the ruling instead as some sort of a long term conservative victory in disguise (since it explicitly reject the ability of congress to require people to buy a product via the Commerce Clause.) Although I do think that, at a political level, it keeps the presidential race in November simpler to have Obamacare intact as a weapon to attack the administration with (given that it continues to be unpopular) rather than having it off the table or its most unpopular provisions removed, I don't think it's possible to spin this as a conservative victory. Clearly, the Democrats won on a large new social program being ruled an acceptable expansion of state power.

As if often the case at such times, Ross Douthat sums it up well, so I'll mostly quote his piece today entitled accurate, "Yes, Liberals Won":

There was a widespread and bipartisan impulse, in the wake of yesterday’s health care ruling, to cast John Roberts’ exercise in political finesse as a potentially significant long-term win for conservatism. Variants of this case were made by George Will and Jay Cost on the right, Jonathan Chait and Tom Scocca on the liberal side of things, and many others besides....

I would find this perspective considerably more persuasive if I could envision how, exactly, this war of “slow constriction” is supposed to play out. Does anyone really believe that a Roberts-led Court is likely to revisit the constitutionality of the major post-New Deal social programs? That it’s going to overturn child labor laws and minimum wage laws, or shutter regulatory agencies? Whatever precedent was set yesterday, that kind of genuine counter-revolution seems highly unlikely.

Likewise, does anyone believe that a host of new Obamacare-style programs — crucial to liberalism’s ambitions, but vulnerable to constitutional challenge — are likely to pass Congress in the next decade or two? If we were entering an era in which an aggressive, ascendant liberalism were poised to push through more sweeping social legislation, then Roberts’ line in the sand might matter enormously for a whole series of looming debates. But the state of our finances (and our politics) makes it much more likely that the Obamacare contest will be remembered as a last lurch forward for welfare state liberalism than the first of many attempted government expansions like it. The manner in which liberals won yesterday could theoretically cost them opportunities to further expand the administrative state, but they probably weren’t going to have those opportunities anyway.

In an intellectual sense, the logic of the health care mandate may indeed have been “pregnant with rampant statism,” as Will puts it. But in terms of practical politics, the health care bill was itself the most statist act that’s likely to pass Congress over the next decade at least, and maybe in John Roberts’ lifetime. And by upholding it, Roberts handed liberals a victory in the scope-of-government war that matters most to them, while at worst setting them up to lose some less important skirmishes somewhere down the road.

On a side note of particular interest to Catholics, there seems to be some confusion out there on which "mandate" the Supreme Court upheld in this ruling. The mandate in question was the individual mandate (the rule that if you don't have health insurance from some other source, you're required to purchase health insurance or else pay a fine for not doing so) not the HHS mandate (an administrative ruling from the department of Health and Human Services which stated that many Catholic run organization are not in fact "religious organization" which can potentially be exempted from the requirement to provide their employees with contraceptive and "morning after" coverage as part of their Obamacare mandated health care plans.) There are a number of lawsuits that have been filed against the HHS mandate insisting (I believe correctly) that it is a restriction of the freedom of religion. These lawsuits, however, have not yet wended their way through the courts to a final ruling, and it will doubtless be some time before they do. Although, clearly, if the Supreme Court had thrown out the whole of Obamacare, this would have averted any need to fight the HHS mandate, the ruling yesterday was not a ruling against the specific freedom of religion question in play there, it was on an unrelated issue.