Not Democrats, not Republicans. The biggest winner in the Obamacare ruling was the Supreme Court.
Regular readers know that I think that Obamacare is a flawed approach to some real problems and will end up giving us a health care system under which the young subsidize the middle age as costs continue to rise. Worse, we will miss out on the economic benefits that could come with more rapid innovation in a more market-friendly system. Every special interest in America was able to carve its pound of flesh out of this law. No tears would have been shed here if the Supreme Court in its wisdom had tossed the whole mess out.
I am not enough of a constitutional scholar to have an opinion worth sharing on the merits of the decision, but in form and execution this was a decision that will reinforce the Court’s position in the country while, so far as I can see, avoiding the possibility of harm based on the faulty constitutional theories that the health care law’s backers put forward.
The decision should also remind people that despite the increasingly partisan nature of the process by which justices are appointed and confirmed, the court is not a partisan organization. Chief Justice Roberts and Associate Justice Kennedy both surprised much of the world with their votes; whatever one thinks of the conclusions they reach it seems reasonably clear that all nine justices vote with their legal convictions rather than their partisan interests.
Many who hate Obamacare will curse the Court and many who like the law will bless it, but the Court is functioning as a Court of law and not a political tribunal. That the Chief Justice appointed by George W. Bush cast the deciding vote to save President Obama’s most important legislative achievement is a clear signal that partisanship in this country goes only so far.
Cleverly, the decision took with one hand while it gave with the other. Resting the law’s validity on the taxing power rather than the commerce clause holds the line on federal power while allowing the will of Congress to be carried out. In that sense, the move was in the best traditions of the Supreme Court.
It’s going to take some time for the dust to settle, but the most interesting early take in my view comes from Jay Cost, who wrote in a tweet no less, “It is about scoring your side a huge legal victory while quieting the heat of opponents; that’s ONLY way to effect enduring change.” Jay’s theory is that the limit on the powers of Congress under the commerce clause will matter more for America’s future development than Obamacare — a law whose weak financial base ensures it will have to be revisited sooner rather than later. That’s why he compares the decision to the famous Marbury vs Madison when the astute John Marshall secured Jeffersonian acquiescence for the Court’s power to nullify Congressional acts by making the overturn of a law the basis for a decision that, in practical terms, got the results Jefferson wanted.
That view may or may not hold up as we chew over the results of this decision in coming weeks and months, but it shows a clear eye for what judicial statesmanship looks like. It would be good news for the United States if it turns out we have a Chief Justice of that caliber.
I have one other thought on the decision.
Both the United States and the European Union have been confronting profound and divisive issues over the last few years. In Europe, they are trying to hammer out the nature of a currency union, a matter that affects the money in everyone’s pockets. In the US, we have been trying to get a grip on our health care system. These are both the most difficult kind of political issues to address: they affect everybody, they stir up powerful emotional currents, and no perfect solutions that please everyone exist.
I don’t think the health care policy we’ve adopted is a particularly good one, but at least our institutions more or less worked. The President made a proposal, the Congress then in office debated the proposal and, after much agony and pork peddling, passed a law. The law was and is controversial; it is being relitigated in two forums. Judicially, it moved through the Court system and received a full and thorough review, and a definitive decision has been pronounced. This is the law of the land, and it will and should be enforced until changed.
The second form of litigation is through the political system. The people voted in 2010, electing a House that is ready to repeal the bill and start anew. This fall, the public will decide whether the President who proposed the bill and the Senate majority that passed it should or should not be replaced.
Like the results or not, our institutions are producing answers. Our institutions take up the questions before the public and they make decisions. Their deliberations conclude, and they pronounce, and we move to the next stage.
Compare all this with Europe, where there are no institutions that are capable of coming to grips with the currency question. Meeting after meeting is held, no real agreement is reached. Neither the EU Parliament nor the Commission nor the heads of government meeting in summits has the power or a method to decide. Europe is trying to write a constitution even as it works desperately to stave off an economic collapse.
The United States, God knows, isn’t perfect. Our political class is not exactly the Best in Show. We labor under some deeply misguided policies and powerful forces threaten to undermine the values and the habits that have made us a great people. Nevertheless, our institutions still work more or less as the Founders designed.
And remember, any successful constitution has to be able to work and work well when the politicians of the day have bad ideas. A constitution that only works when the good guys are in control is a bad constitution and it won’t last long. Even if you hate the health care law and disagree with the reasoning by which it was upheld, the institutions of our government are still there, ready to be used for better purposes at a later time.
Constitutionally speaking, the Roberts decision this morning may or may not hold up and be well regarded over time. But the place of the Supreme Court in the American system, and the supremacy of the Constitution as the yardstick against which our laws must be measured, has been successfully and vigorously asserted today, and about that I am very glad.
Our Constitution remains a miracle of statesmanship even if our health care system is a mess.
UPDATE: Sean Trende has an interesting post on the decision over at RealClearPolitics. It will take time — years, possibly — to see if Trende has this right, but he reminds us that a Chief Justice needs to think about more than one case at a time.