Between the Lines: Why liberalism faces a new era of constitutional insecurity.
SOME VICTORIES prepare the ground for more victories; others lay the basis for future defeats. The great question for liberals about the Supreme Court’s decision on the Affordable Care Act (ACA) is which kind of victory it is.
John Roberts’s decision to spare the ACA at least allows the president this fall to claim health reform as a major achievement. But the chief justice’s new limits on the scope of the Commerce clause and federal spending powers may put future reforms at risk of being struck down and require liberals to rethink their approach to national policy. Roberts’s opinion upholds conservative positions in nearly every respect except its conclusion, and it is especially worrisome in light of the readiness of the four right-wing dissenting justices to use the same arguments to overturn the ACA in its entirety. As long as the Court has a conservative majority, the threat of a judicial veto will now hang over a wide range of liberal initiatives, including many long believed to be moderate, incremental, and constitutionally secure.
FROM A HISTORICAL perspective, the ACA followed the path of least resistance to universal health insurance. Through most of the twentieth century, the model that many Democrats favored for health care was a tax-supported national program like Social Security or Medicare. They regarded private health insurance as inefficient and inequitable, and they saw Medicaid as providing only limited access to care. But after years of frustration, congressional Democrats pursued incremental reforms as a stopgap. During the 1980s, they worked with Republicans to extend Medicaid to pregnant women and young children in families with incomes up to 133 percent of the poverty level. These extensions, signed into law by Ronald Reagan and George H.W. Bush, began as options for states and were soon revised and became mandates, and the states all complied in expanding coverage. In the early ’90s, as a counterproposal to President Bill Clinton’s health plan, many prominent Republicans also endorsed a mandate on individuals to purchase health coverage as part of federal legislation to bolster private insurance and make coverage universal.
In short, both elements at issue in the legal challenge to the ACA—the individual mandate and the Medicaid expansion—had a Republican imprimatur. Serious questions had never been raised about their constitutionality. Perhaps the most worrisome aspect of the ACA case is that the Court nearly overthrew the entire act on the basis of arguments that Congress had no reason to take seriously when it passed the legislation.