July 2, 2012
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Can progressives stop fretting over the Supreme Court’s recent Obamacare decision for a few minutes and realize that liberals have actually won a truly remarkable political victory?
Don’t take my word for it. Take New York Times
columnist Paul Krugman, who said
, “Let’s celebrate. This was a big day, a victory for due process, decency and the American people.” Especially, for an estimated 30 million Americans who will now get access to America’s healthcare system.
Or take filmmaker Michael Moore’s word for it, heard
on Democracy Now. “Let me state the positive first,” he said. “This really is a huge victory for our side, in spite of all my concerns with this law… This is a real—a real smackdown of their—the way that they [the Tea Party right] believe our country should be structured… It moves history forward on the right path.”
“This was a historic week for President Obama,” wrote
longtime pollster John Zogby in the right-leaning Washington Times
. “Few presidents can claim to have passed major reform legislation and this one will make it into seventh-grade social studies textbooks. In fact, if we look at the past 100 years, there have only been nine years that have been categorized as major reform years: 1912-1913 [the Progressive Era], 1933-1936 [the New Deal], and 1964-1965 [the Great Society]. It is not a question of whether we like or dislike the legislation, it is that issues were addressed and passed.”
That is why Katrina vanden Heuvel, the publisher of the Nation
a NPR audience the ruling marked “a welcome beginning to the end of the scandal in which nearly 50 million [Americans] remain uninsured.”
I know many of you will be saying—and commenting—that the Affordable Care Act is nothing but a corporate giveaway that is going to gouge Americans for years while doing little to bring us closer to a European system of healthcare for all. Your instincts are right, and affirmed by these same liberal opinion-makers such as Moore, who also can’t stand
for-profit healthcare. But can we still acknowledge that history’s pendulum has swung in our direction?
The mainstream media already has spent too much time focusing on the law's mandate that everyone must have a health plan by January 2014. But if you have a pre-existing condition—which life invariably brings—you cannot now be denied insurance. If you are a young adult, you can stay on your parents' plan until age 26. Insurance companies can no longer put lifetime caps on your coverage. And once the law kicks in, insurers must spend 85 cents of every dollar on paying for actual medical care, not administration. It's no wonder these anti-corporate rules have unraveled Republicans.
Did Roberts change his vote?
For proof, look at how the right has tied itself up in knots since Thursday’s landmark ruling. You can start with this weekend’s big brouhaha, initiated by a remarkable CBS News report
from Jan Crawford, who made a formidable case that Chief Justice John Roberts switched his vote from overturning the law to upholding it, stirring “the ire of the conservative justices,” according to law clerks and others at the Court who are normally tight-lipped about its proceedings.
No one should be fooled into thinking Roberts is a liberal's new best friend. Indeed the decision has some seriously troubling aspects
that could be cited in future cases to curtail federal authority to respond to crises. But apparently Roberts was not immune to criticism that the Court had become a political tool for right-wingers. “Rumors had been circulating in legal circles for weeks that Chief Justice Roberts in particular was under enormous political pressure not to be the vote that would overturn the most significant piece of social legislation passed by Congress in decades,” noted
Salon’s Paul Campos.
The next evidence of how flummoxed the GOP has become comes from none other than Mitt Romney, whose senior policy adviser, Eric Fehrnstrom, “strayed wildly from the coordinated comments of the Republican leadership on Capitol Hill and other party strategists,” The New York Times
Web site reported
on Monday, by asserting the law did not raise taxes on anyone who failed to have a health plan by January 2014. “You should call it a penalty or a fee or a fine.”
Roberts has been called
a "traitor" by fellow Republicans such as Sarah Palin, on Fox News. That comment was consistent with “lies about healthcare,” which was how the Times
’ editorial page editor put it
, citing House Budget Committee Chairman and GOP economic guru Paul Ryan saying the law should be repealed as a theological matter, Rush Limbaugh calling it “the largest tax increase in the history of the world,” and Senate Minority Leader Mitch McConnell saying it will cut $500 billion from Medicare.
Surely even liberal critics of the law can agree that there must be something good in it if all these GOP hardliners are in a tizzy.
Now watch the GOP make fools of themselves
These right-wing opinion-makers and politicians are leading a stampede trailed by even more foolish governors. As of Monday, according to ThinkProgress’s
latest count, 10 states have said they will follow the option left by the Supreme Court and not implement the law’s Medicaid expansion, even though the federal government will pay 100 percent of its cost in the first few years and 90 percent after that. That has to be music to ears of anyone seeking to unseat these nuts.
Take Florida, for example. Gov. Rick Scott’s defiance will deprive the state of $20 billion and deny medical care to more than 950,000 people, according to a Kaiser study on Medicaid and the uninsured cited
by ThinkProgress. The other nine states are Georgia, Iowa, Indiana, Kansas, Louisiana, New Jersey, South Carolina, South Dakota and Wisconsin. Half of these are presidential swing states in which Obama—until this latest GOP defiance—was looking at a harder struggle finding issues that could connect with working-class voters.
You might ask, who will defend healthcare for the poor in these red states? The answer is that politics makes strange bedfellows, and in this case it will be the healthcare providers, hospitals and other key industry players that want the jobs and profits associated with serving the nearly 3.5 million people that will be denied coverage if these 10 GOP governors impede this aspect of Obamacare. That number may grow to more than 5.7 million people if 19 other states—including some that passed
ridiculous "healthcare freedom" legislation or constitutional amendments—also reject the billions in federal funds and deny coverage.
What’s obvious to a majority of Americans in the political center (which is who decides presidential and congressional elections in presidential years) but is not obvious to right-wingers, is that the time has come to move on from fighting this law. That’s what 56 percent said in a just-completed nationwide poll
by the Kaiser Family Foundation.
“They would like to see the law’s detractors stop their efforts to block its implementation and move onto other national problems,” the Foundation’s press release said. Notably, only 17 percent reported being angry at the Supreme Court’s ruling—a figure that is on par with the percentage of voters that historically identify themselves with the hard right.
Obamacare can’t be so easily reversed
Despite the frothing from the GOP, whether in Romney’s promise to throw out the law as soon as he takes office or the latest House pledge to hold another repeal vote, numerous scholars have concluded that much of the law is here to stay.
Mainstream newspapers, such as the Detroit Free Press
, all make the same point
: that there are not going to be enough GOP senators to pass a wholesale repeal. Additionally, while a Romney presidency could wreak havoc by adopting regulations to impede its implementation, health industry lobbyists will hardly allow a Republican president to worsen their business climate.
Moreover, as people become familiar with the law’s contents
, its opponents are going to sound sillier and sillier. Most people only know the slightest details about the law. They may know that it already has allowed parents to keep kids up to age 26 on family plans. They may know that once it takes effect in 2014, individuals looking to buy a policy can’t be denied one because of a pre-existing condition, or can’t be charged more because of their medical history.
There’s actually a lot more to the law than that. It creates hundreds of health clinics across the country in underserved areas. It imposes an income tax surcharge on the wealthiest Americans to pay for care for the poor. Sorry, National Journal
, but the case for repeal is not
The Affordable Care Act is not a progressive’s dream by any stretch. It is not western European style-universal care. It keeps health insurers in business and they are now jacking up rates to lock in profits before the law’s price controls kick in. But stop and think about how many members of your family might be helped by it. The answer is college students, unemployed graduates, self-employed people in middle age who can’t now buy any coverage, seniors who will see less costly prescriptions, working-class people who go without seeing a doctor regularly, or people who don’t live near medical centers.
That’s why Paul Krugman wrote
, “The real winners are ordinary Americans—people like you.”
Winning the battle, but losing the war?
One of the big right-wing takes coming out of Thursday’s Court ruling was that conservatives lost big on healthcare but won big on constitutional issues because the Court limited Congress’ powers to act under the Commerce Clause, which empowers it to regulate interstate business, and under the Spending Clause, which allows Congress to attach requirements to states that take federal funds.
“We won,” trumpeted
Randy Barnett, a libertarian Georgetown Law School professor, quoted in the Washington Post
and elsewhere. “All the arguments that the [mainstream] law professors said were frivolous were affirmed by a majority of the Court.”
Certainly, no progressive should conclude that John Roberts is their new best friend. Indeed, this reporter
and others—such as the Nation’s
Aziz Haq— wrote
analyses that were very concerned about the precedent of five justices voting against Congress’s Commerce and Spending Clause powers. “Make no mistake,” Haq wrote. “The decision could also be a significant legal victory for the political forces committed to limiting the state’s ability to care for the weak and fragile among us.”
All we can do is hope that will not be the case—and that the Roberts Court will not revert to previous eras in the history of the Supreme Court when callous corporatists ruled with impunity and indifference.
The most interesting take on this predicament comes from the Balkinization law blog, where Mark Graber wrote
, “What is most interesting and disturbing is the absence of one alternative Constitution.”
By that, he means that there are different and competing views of what the Constitution means. “Justice Ginsburg’s Constitution is the Constitution of New Deal Democrats… Chief Justice Roberts’s Constitution is the Constitution of the Republican Party… The Constitution of Justices Kennedy, Scalia, Alito and (particularly) Thomas is the Constitution of the Tea Party… [and] what might be called the Move-On or Progressive Constitution is missing from this debate entirely.” Graber said that constitutional view is one based in the amendments that followed the Civil War, which declared that every person has basic rights as democratic citizens. Today that would include the right to healthcare, and Congress’s powers to pass laws to make that a reality.
Progressives and taking the long view
pinpoints exactly why progressives were underwhelmed by the Supreme Court’s ruling that resurrected Obamacare. But it matters less that Roberts found a path to preserve the law than the fact that in today's anti-government era, the nation’s social safety net will be expanded on a magnitude not seen for nearly 50 years.
Nobody expects that the fight over the role of government in general, or over Obamacare in particular, will go away. These fights will continue just as the law will solve some problems for some people and create new frustrations for others. But progressives should not look progress in the eye or pretend it doesn’t exist.
If anything, just as the Tea Party right will be galvanized by the ruling to make its voice heard (and it has four Supreme Court justices who are adherents), liberals need to keep pushing for their constitutional vision. Rather than look at the law scornfully, we should see a cup that is half full, and a political pendulum swinging toward our direction.
“That’s why the best thing about this is, is that it moves history forward on the right path toward what we will eventually have, just as every other civilized country has [universal care],” Michael Moore said
on Democracy Now.
“It’s not perfect by a long shot – it is, after all, originally a Republican plan, devised long ago as a way to forestall the obvious alternative of extending Medicare to cover everyone,” Paul Krugman wrote
. “But it’s a big step toward a better – and by that I mean morally better – society.”
Isn’t that something progressives can feel good about?
Steven Rosenfeld covers democracy issues for AlterNet and is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).