At the time we shared other conservatives’ outrage when Chief Justice John Roberts engaged in intellectual backflips to uphold Obamacare as a “tax” and to create an opt-out for states on Medicaid, which had no foundation in the statute whatsoever. In retrospect, the Medicaid invention was more disruptive to the structure of the law than many imagined, leaving millions whom the law intended to cover without either Medicaid or Obamacare subsidies. It was precisely the sort of legislating by judges that conservatives have come to disdain.
But let’s look again at the more memorable part of Roberts’s decision — namely, to rescue Obamacare on the tax provision. While we still take issue with the degree to which the chief justice strained against the plain language of the statute to reach the outcome he desired (presumably for the betterment of the court’s reputation), there is a strain of constitutional cases that requires judges to find, if possible, a reasonable construction of the law to uphold a law in deference to the elected branches. We simply disagree with Roberts that his interpretation was “reasonable.”
However, consider if the court, on a 5 to 4 basis, had struck down the law. We would not now be having a lively debate about the law’s merits and the liberal welfare state more generally. We would not be on the cusp (Republican hope) of an extraordinary electoral shellacking of those who defended the law. Republicans likely would not be quite so anxious to devise creative alternatives to Obamacare as part of the effort to get rid of the law. And maybe most important, the left would be eternally aggrieved, claiming that their health-care creation never had a chance to work in practice.
The reality is that on the facts and arguments surrounding the most far-reaching and transformative domestic program since the Great Society, conservatives were absolutely right and the left was absolutely wrong. That is the case when it comes to ObamaCare’s effect on (among other things) jobs, on businesses, on coverage for the uninsured, on keeping your plan if you like it, on premiums and deductibles, on its cost, and on its overall effect on our health-care system.
Progressives have full ownership of ObamaCare. They built it, they passed it, they own it. This is a “teachable moment,” to use a favorite Obama phrase, when it comes to both the political philosophy and competence of liberalism.
That has only come to pass since Chief Justice Roberts refused to drive a stake through Obamacare from the bench.
This is not meant to be an excuse for bad judging, and I still maintain his tax decision was intellectually dishonest. However, conservatives should take away a few lessons.
Most important, they should not put undue faith in the judiciary to rid the land of bad, unreasonable and ill-conceived legislation; had they spent more time focused on the merits, rather than the legality, of Obamacare, they might be further along in devising an alternative.
Moreover, the political hurly-burly of policy battles, along with the accountability that goes with those fights, is precisely how the system is supposed to work. The court must, of course, step in to protect the Constitution from legislative impropriety, but when it is a close call there is a lot to be said for fighting ideological battles out in the political realm.
The failure to fully embrace the preference for policy fights on the merits led in part to the ill-conceived government shutdown. If far-right conservatives had more confidence in their criticisms of Obamacare, they would not have seen the shutdown as their last chance to stop the law. In fact, the resolution of the shutdown turned out to be the beginning of the most effective period in anti-Obamacare persuasion. The shutdown squad, like the chief justice, should have trusted in the political arena, shaped by real-world experience with the law, to reach the result they desired.
This is, in a way, the flip side of Roe v. Wade. In that case, the Supreme Court took abortion largely out of the political context and left social conservatives forever aggrieved. That, in turn, fueled a powerful pro-life movement and the jurisprudential shift toward originalism. Had the court ceded ground to the political process, there might have been more agreement and less polarization as states wrestled with the issue and reached political compromise. (That is the route gay marriage is taking and, I would suggest, it is to the betterment of the democratic process and the goals of pro-gay marriage advocates.)
At the risk of being Candide-like, the current Obamacare debate may have turned out to be the best of all worlds for conservatives. We have a straight up-or-down referendum on the liberal welfare state, a political consensus in the making (i.e. this is one rotten piece of legislation) and the potential for complete accountability for the party that drove the law through on a party-line vote and has defended it on party-line votes ever since.
If the Republicans can’t make the case against Obamacare — and the liberal welfare state — now, they might want to consider another line of work.