Today’s Courier Herald Column:
The Supreme Court ended its session with a flourish, surprising most observers with not only the decision to uphold the Affordable Care Act, but the way it was upheld. Chief Justice Roberts wrote the opinion, as expected. It was not at all expected that he would side with the court’s four more liberal justices to form the majority opinion.
I will not pretend to be a legal or constitutional scholar, nor will I pretend that I have read the decision, dissent, or a lot of legal commentary since the decision was released. There will be plenty of time for that later. Today’s column is merely about the immediate reaction and a few first impressions about where we go from here.
First, initial impressions and a 24 hour news cycle are not conducive to the nuance of a complex legal decision. Most of the first reports as the decision was released were that the individual mandate had been struck down. Atlanta based CNN and FoxNews both initially reported the wrong decision, creating much confusion for those attempting to consume instant news.
Supreme Court decisions rely heavily on word choice, tone, and complex thoughts that do not parse well into bullet points. Television’s “talking heads” are not the best suited individuals to relay these complicated decisions and their meaning in a real time format. I personally intend on ignoring most of the reaction to the decision for the first 48 hours, as more people are reacting to the reaction than to the multiple implications to law regarding the use of the Commerce Clause, the federal government’s taxing authority, health care policy, and all of the above’s impact on our state and us as individuals.
Second, anyone watching too closely the run-up to the decision by partisans may be suffering whiplash this morning. Left leaning opinion makers who were prepared to declare the Supreme Court illegitimate are now praising John Roberts as a defender and protector of the institution. Those on the right are in the unusual position of criticizing the court for being non-activists in replacing their will over that of the legislative and executive branches. It is important to remember that partisan talking points are not deeply rooted in anything other than potential electoral advantage, and are subject to change as quickly as the facts of the moment.
Third, for matters that we normally focus on in this space, this greatly complicates matters for those planning policy and budgets at the state level for the upcoming year. The state will likely be receiving more than a half million additional Georgians on the Medicaid rolls, and is behind schedule in setting up health care exchanges mandated by the Affordable Care Act. Governor Deal downplayed the idea of a special session to deal with these upcoming problems, but also indicated an extension for a deadline from the Centers for Medicare and Medicaid Services would likely be needed to avoid that.
Fourth, politics for the general election is now in full play over heath care, and not just at the Presidential level. Because the Affordable Care Act is now the law of the land as a “tax” bill, it faces different rules for repeal than it would have before the ruling. Specifically, tax bills often face the process of “reconciliation” in the Senate, which does not require the 60 votes for cloture that has been used to maintain the gridlock keeping both Democratic and Republican initiatives bottled up in Congress. With reconciliation a possibility, health care is not just an issue in the Presidential race, but in every Senate race as well. Control of the Senate is now a major benchmark for mobilizing each party’s base for November.
Finally, the sun came up today. And it will again tomorrow. Many on the far right are lamenting that this is the end of liberty and the Republic as we know it. We are a resourceful people and a resilient nation. While disappointed in the ruling, there was a clearer and much easier path to overturning the law through legislative means than had previously existed.
The will of the people in a Republic is to be expressed through elections, not through the courts. If the Affordable Care Act is to be repealed, then let it be by the hands of the Congress and under the signature of the President.
Both are on the table this November. So conservatives can either wring hands and gnash teeth, or they can get to work.