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Roberts Saves POTUS and SCOTUS

By (July 1, 2012) No Comment

We may never know with certainty what brought Supreme Court Chief Justice John Roberts to cast the deciding vote to uphold the Affordable Care Act and salvage the chief accomplishment of Barack Obama’s presidency. But it’s clear that something dramatic occurred.

The headline is that the bill’s mandate – the provision stipulating that all uninsured Americans either purchase health insurance or pay a penalty – is legal because it falls under Congress’ constitutional authority to levy taxes. The Obama Administration’s main argument was very different: that Congress has the authority to enact such a law under its constitutional authority to regulate inter-state commerce. Four justices agreed, yet five, including Roberts, did not. But Roberts effectively joined the court’s four liberal justices through a different argument: that the mandate and its penalty were effectively a tax, and were thus a proper exercise by Congress of one of its constitutionally-defined responsibilities.

It’s difficult to avoid the conclusion that Roberts’ decision was as much about the reputation of the Supreme Court as it was about the legitimacy of any particular law. The court has been bleeding popularity for some time now. Charles Krauthammer claims that this dates to the 1960s and the liberalism of the Warren Court. But as even he admits, the Supreme Court had an approval rating above 80 percent as late as the 1990s. The belief that the court is becoming a partisan organ – nine senators with lifetime tenure, as someone recently called them – is really a liberal belief, one that dates to Bush v Gore in 2000 and metastasized after Citizens United in 2010. Before he was confirmed as Chief Justice, Roberts often spoke of the importance of being a good steward of the court – a quasi-political position, really – and it seems that he has finally chosen to follow his own advice. In rejecting the commerce clause justification and finding a different one, the ACA decision is both a sop to liberals and a validation of a principle conservative objection to the social reforms of the last fifty years.

Few people expected Roberts to side with the Obama Administration in any fashion, and there are strong hints that he may have changed his opinion while the court was writing its decision. As Ed Whelan notes, the joint dissent

reads as though it were written to be the majority opinion. Among other things, the joint dissent’s discussion of the taxing power doesn’t respond to the Chief Justice’s opinion (indeed, I think it never even cites it). Rather, it addresses only the government’s argument. By contrast, the Chief’s opinion repeatedly takes issue with the joint dissent. This strongly suggests to me that the joint dissent was written first, as the proposed majority opinion, but failed to garner the fifth vote from the Chief.

The fact that the joint dissent (see slip op. at 13-16) repeatedly refers to Justice Ginsburg’s views on the Commerce Clause issue as the “dissent” reinforces my impression—all the more so as the dissenters don’t undertake to point out that their views combined with the Chief Justice’s establish a majority on the Commerce Clause point.

David Bernstein floats an interesting possibility:

Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion… to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA? The dissent, along with the surprising way that Roberts chose to uphold both the mandate and the Medicaid expansion, will inevitably feed the rumor mill.

One of the problems with this theory, as Whelan notes, “it’s difficult to reconcile with the fact that the Chief would have assigned the majority opinion in the first place,” though the evidence supporting some kind of switch is convincing. In any case, it appears that an extremely contentious debate preceded the Supreme Court’s decision on health care, maybe the last half century’s most important piece of domestic legislation.

The court’s majority rejection of the commerce clause could make future attempts to enact liberal social policy more difficult, but that is far from certain: the court could choose to read the commerce restriction narrowly, and it is likely to do so if its composition tilts to the left in the future – a strong possibility if Obama wins a second term. What is certain is that this is a substantive and political victory for the President.

If the court had struck down his biggest accomplishment, the sunniest domestic legacy he could hope for would be positively Clintonian: a somewhat unexciting managerial competence. Now, even if he is defeated in November, he will have left behind an epochal change in the organization of American society, one that, despite his opportunistic protests to the contrary, Mitt Romney will find difficult to undo.

But the ACA decision was a political victory for the Obama Administration as well, though Nate Cohn of The New Republic thinks otherwise:

If the Court had gone a different direction, the electoral consequences could have been more significant. But since the ruling preserves the status quo, the fundamentals of the health care debate remain essentially unaltered. Dissatisfaction with the health care law is already priced into the President’s approval ratings—Obama’s pursuit of health care reform was a defining element of his first term, and voters have already judged him on that basis. Opposition to the health care law was never driven by arcane constitutional concerns, even if many viewed it as government overreach.

The problem with this theory us that part of the dissatisfaction with the health care law is based on the vague notion that it was an illegitimate overreach of federal power. But the ruling will necessarily soften that impression: not only has the Supreme Court given the ACA its stamp of approval, but that stamp comes from the most conservative court in sixty years. And since the Supreme Court is the final arbiter of legality, the debate over legitimacy will take on an air of finality, and Obama will be free to tout its benefits. As David Frum writes, perhaps overstating the case somewhat:

President Obama has just been handed a fearsome election weapon. 2012 is no longer exclusively a referendum on the president’s economic management. 2012 is now also a referendum on Mitt Romney’s healthcare plans. The president can now plausibly say that a vote for the Republicans is a vote to raise prescription drug costs on senior citizens and to empower insurance companies to deny coverage to children for pre-existing conditions. Those charges will hurt—and maybe hurt enough to sway the election

Frum goes on to rattle off an impressive list of reasons the law will extremely difficult to repeal: because a one-page revocation of the ACA will inevitably grow as the law’s provisions take effect and Republicans scramble to placate their constituents; because Romney’s pledge to grant waivers to every state won’t mean anything when states realize the costs of the ACA will largely be borne by the federal government; because replacing the law (Romney is careful to say “replace” more than “repeal”) will be nearly impossible because there is no Republican consensus on what a replacement bill would look like, and raising new revenues is out of the question for the GOP; because, finally, time is running out: the rest of the law’s major provisions come into effect in 2014, and after that it will be a difficult thing to throw tens of millions off the healthcare rolls, even for today’s Republican party. The Patient Protection and Affordable Care Act would become, like Social Security and Medicare, a fact of life.

The hard-line Republicans have only two chances for wholesale reversal. For each one, Republicans will have to win the Presidency, the Senate and retain the House in the 2012 elections. The first is merely theoretical: to pass a repeal or replacement in the conventional way. But on the Senate floor they will need 60 votes and the Democrats, having endured four years of constant filibuster threats from the GOP, will be happy to return the favor. Since the chances of the Republicans gaining enough seats or turning enough Democrats is microscopic, the chances of this option succeeding are microscopic.

Option two is a far more serious threat. Republicans could repeal key elements of the bill during the budget reconciliation process between the House and Senate, a filibuster-proof maneuver that allows changes to a budget resolution in conference, after which the bill can be passed by a simple majority. Ryan Lizza of the New Yorker doubts this could happen:

But reconciliation wouldn’t work here—the process can only be used for policies that have budgetary effects and a C.B.O. score. Much of the A.C.A., such as the insurance exchanges and subsidies, would fall under these categories. But a lot of it, including the hated individual mandate, does not. Repealing the exchanges and subsides without repealing the mandate and the other regulations and cost controls in the law would create a health-care Frankenstein that a President Romney would be rather nuts to support.

Jonathan Chait thinks Romney is rather nuts:

If Romney is unwilling to break faith with his base after he has already secured the nomination, and needs to command the center, then he’ll be unwilling to break faith with them immediately upon taking office. I would take the Republicans at their word that they will use their power to the absolute maximum extent, at any human cost, to avenge what they consider a monstrous and tyrannical wrong.

I’m only a little less sure. In politics Mitt Romney is fanatically practical – which is another way of saying that he is a moral coward. If he becomes President, his instincts will tell him to appease the voters who are benefiting from the ACA because they can help him win reelection; Romney will prefer to have alternative ready and waiting before he signs off on a repeal. But if the Republicans simply gut the law in conference he’ll sign it regardless, because he is a practical man, and the base comes first. All this goes out the window after 2013, when the rest of the law’s provisions take effect and millions gain health insurance. Which means that the only possible chance for repeal is an unlikely Republican trifecta in November and quick action in the first months of the 2013 session – predicated upon the hope that Mitt Romney, the most notorious waffler of his time, will for once be true to his word.