Big Losers in Obamacare Ruling: George Will and Right-Wing Ideologues

The Supreme Court’s health care reform decision threw some red meat to conservatives ideologues led by the likes of George Will—who wanted the ruling to resurrect a nasty Court legacy from a century ago of undermining progressive legislation—but a close reading of the majority opinion may leave today’s draconian conservatives wondering, ‘Where’s the beef?’

Will and various right-wing think-tanks wanted the Supreme Court to resurrect the so-called Lochner Era, where in 1905 the court started issuing decisions that reversed progressive healthcare and labor laws, essentially saying an individual’s freedom to have their own ‘contract’ with their employer was more deserving of constitutional protection than any health or labor concern.

As recently as June 15, Will’s Washington Post column demanded that the Court’s conservatives be unleashed. He and fellow corporatists wanted the Court to say the Congress did not have power under the Constitution’s Commerce Clause, granting authority to regulate interstate economic activity, to order that people to buy an insurance policy. They wanted a ruling to reel in Congress’ power to regulate economic activity, a restriction that could keep it from, for example, responding to global warming.

What they got fell short of that. Indeed, Chief Justice John Roberts’ opinion for the majority said that the coverage mandate of the Affordable Care Act was permissible, but not under the Commerce Clause, nor under the Necessary and Proper Clause, which gives Congress power to legislate to address genuine problems. The law’s insurance-buying requirement was not a requirement at all, Roberts wrote, because all the law did was impose a tax on people who didn’t buy a health plan after January 2014.

“The mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income,” he wrote. “And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”

Essentially, Roberts said that Congress can’t use the Commerce Clause to force people to do anything that they are not now doing—such as buying an insurance policy at some future point—because such inaction is not an economic activity. All Congress can do, he said, is impose a small fine, through taxes, for a failure to have a health plan. And that taxing power was constitutional, he said.

That all may seem like twisted logic, but what is important here—especially when seen through the frame of what the right-wingers lusted after—is that Roberts did not roll back any Commerce Clause powers that Congress currently has. Nor did he create new individual rights that can be used to limit the government’s current powers. In short, he pontificated and telegraphed his inclinations, but the constitutional landscape is largely unchanged.

Justice Ruth Bader Ginsburg was not pleased at all with the Chief Justice's reasoning, saying in a dissent that his "rigid reading of the Commerce Clause makes scant sense and is stunningly retrogressive." 

That's certainly true, but some of the first responses on right-wing blogs and conservative websites are tepidly acknowledging the reality that the legal status quo holds--that Roberts did not take away Congress' power to legislate on economic matters.  

The National Review Online’s Johnathan Adler tried to comfort conservatives unhappy with the decision, writing, “As I understand the ruling, the opinion does very little to enlarge the federal government’s power and, in key respects, reinforced federalism limitations on federal power. "

Roberts may have set a tone by reminding all that there are limits to what the Congress can do under the Commerce Clause. Indeed, his remarks taken with the court's four conservative justices' joint dissent that also said the ACA exceeded Congress's authority under the Commerce Clause, means there is a plausible future majority to roll back interstate economic legislation. 

But the ghost of Lochner has not risen. So yes, Roberts threw some red meat to the hard right by saying the Affordable Care Act couldn’t hold up under the Commerce and Necessary and Proper Clauses. However, what the right-wingers wanted was a firm precedent to shrink Congress’s authority to act in national economic crises—and they really did not get that.

Of course, the reality is that the current Supreme Court is very unpredictable—and what appears as a measured outcome in one case can be followed by a very unreasonable decision in another.

But for now, at least for today, it is right-wingers who are pounding their desks and scratching their heads—not liberals who feared that the Court would take drastic steps that might lead to decades of new corporate powers, as the 1905 Lochner ruling did until the height of the Depression in the late 1930s. 


AlterNet / By Steven Rosenfeld

Posted at June 28, 2012, 6:46am

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