Friday, June 29, 2012

Heavy Dose of Irony With Supreme Court's Decision on Health Care Act

Yesterday's historic decision upholding the constitutionality of the Affordable Care Act (HCR/Obamacare) was not without a heavy dose of irony.

Where can one start? How about with the person who was the swing vote: Chief Justice John Roberts.

Roberts had been nominated by President George W. Bush and many on the left castigated his conservative views. Indeed, the confirmation vote split Democrats neatly in half. Here's the list of those who voted against Roberts' confirmation as Chief Justice of the Court:
Democrats voting no:
Daniel Akaka of Hawaii
Evan Bayh of Indiana
Joseph Biden of Delaware
Barbara Boxer of California
Maria Cantwell of Washington
Hillary Rodham Clinton of New York
Jon Corzine of New Jersey
Mark Dayton of Minnesota
Dick Durbin of Illinois
Dianne Feinstein of California
Tom Harkin of Iowa
Daniel Inouye of Hawaii
Edward Kennedy of Massachusetts
John Kerry of Massachusetts
Frank Lautenberg of New Jersey
Barbara Mikulski of Maryland
Barack Obama of Illinois
Harry Reid of Nevada
Charles Schumer of New York
Debbie Stabenow of Michigan
Jack Reed of Rhode Island
Paul Sarbanes of Maryland
You'll note more than a few of those Democrats were among those who were behind enacting the PPACA (PL 111-148). They're now loudly hailing the affirmation of the health care reform package and individual mandate but were opposed to Roberts on ideological grounds. Likewise, many Republicans who had supported Roberts, were gravely disappointed about the decision and were vowing to repeal the Act as soon as next month. Pundits and bloggers alike were calling for Roberts' head.

The job of the Senate in confirmation isn't making sure that the nominee of the Court has pure political views that align with the wishes of Congress. It is to advise and consent - does the nominee have what it takes to sit on the highest court in the nation.

I always thought that Roberts was supremely qualified for the Court - as did many Republicans.

Yet, it was the vote on the health care reform package that upset the apple court. Those Democrats who pushed for the health care reform are now cheering Roberts for upholding the health care act's individual mandate, while Republicans and right wingers are calling for Roberts' head because he somehow ruled the individual mandate constitutional when they thought it wasn't.

Roberts held true to his confirmation hearing statement - his job is to call balls and strikes, not to pitch or bat. As his opinion in the case shows, he rejected the Commerce Clause and Necessary and Proper clause because they were Congressional overreach, and yet sustained the Act on taxation powers grounds. He also directly addressed judicial activism and construing acts of Congress:
Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic.
That's exactly what was done, and yet Republican after Republican was calling the Act unconstitutional, including GOP Nominee for President Mitt Romney.
Republican leaders pounced, with Senator Mitch McConnell of Kentucky, the minority leader, declaring: “This law is a tax. This bill was sold to the American people on a deception.”

Mr. Romney chose instead to cast the health care overhaul as poisonous to the economy and a prime example of the Obama administration’s expansion of government.

“What the court did not do on its last day in session, I will do on my first day as president of the United States,” Mr. Romney said in a rare appearance on Capitol Hill shortly after the ruling. He added, “Our mission is clear: If we want to get rid of Obamacare, we’re going to have to replace President Obama.”
Romney's vow to act to repeal the Act is not without its own sense of irony. He was Governor of Massachusetts when the state enacted its own form of individual mandate. Romney was once one of the biggest proponents of the kind of health care reform ultimately backed by President Obama.

Then, there the matter that Republicans in general had backed some form of individual mandate for more than 20 years until the Obama Administration decided to use its own version of individual mandate. That's when the Republicans shifted to oppose it at all costs and repeatedly called it unconstitutional.

What can anyone make of the fact that they were pushing a policy objective for 20 years that they only considered unconstitutional once the other side of the aisle took them up on the matter and enacted it as law.

I really think that if a Republican in the White House went ahead with the same proposals, the sides would be a mirror image of what we've got- Republicans would be hailing the decision while Democrats would be aghast at the imposition of the individual mandate (but because it didn't go nearly far enough). Much of the rancor and rhetoric is purely partisan politics at work. After all, who in their right mind would repeal provisions that extend benefits to dependents up to age 26 (expanding coverage to millions) or eliminating lifetime insurance limits. The GOP has made it a central part to their campaigns going into November that they would seek to repeal the entirety of the reform act, but if they simply switched around a few minor provisions, they'd be more than happy to declare Obamacare dead and rename it. They want to deny President Obama any achievement, especially on health care reform.

Despite the landmark ruling, there are issues with the reform package that need reform. Treatment of OTC drugs for flex spending accounts should be revised to once again include it as a reimbursable item. Congress has already address onerous paperwork requirements. Costs for procedures and drugs should be made more transparent so that everyone knows what items cost - and allow for more comparison shopping, which should work towards bending the cost curve and produce additional savings for consumers and health care providers alike.

If Congress wants to find a different way to fund the variety of programs, then by all means let them figure out a way to do so. But with the GOP refusing to accept any tax hikes, even those that are the result of a Congressional decision to allow tax rates to return to pre EGTRRA (Bush tax cuts) levels when the rate cuts expire (and they've already extended the cuts into 2013), that's pretty much a nonstarter.

What is also surprising is that when polled on specific items of the reform act, they show significant support, but they oppose the package as a whole. That goes to how the Republican message has won the day on health care reform, even though their constituents largely approve of changes. It also points out the complexity with the health care law and how most people don't understand what's going on.

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