Obama gains a big victory, but the economy may haunt him

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by L. IAN MacDONALD
The Gazette, Wednesday, July 4, 2012

For Canadians, public health care is easily understood. There are three bedrock principles. There’s a single insurer: government. It’s universal: everyone’s covered. And it’s portable: you can take it with you to another province.

There may be a shortage of doctors and nurses, there will certainly be unacceptable waiting times for elective procedures and there is a strong case to be made for private delivery of publicly funded health care to reduce those very shortages and waiting times. Private clinics already do that outside the system.

But no politician or party in Canada, at least not one with any thought of being elected, would propose to dismantle publicly funded and delivered health care as the centrepiece of a caring and compassionate society.

In the United States, it’s different – and incredibly confusing, as the U.S. Supreme Court has just demonstrated in its historic ruling on Barack Obama’s Affordable Care Act, or Obamacare, as its opponents have branded it.

On the one hand, the Supremes upheld the “mandate” requiring Americans not insured by employee plans to buy health-care insurance or face a penalty or fine. Obama’s supporters insist this provision is not a tax, though the court has upheld the mandate on the grounds that it falls within the power of Congress to tax.

On the other hand, the court ruled that Obamacare cannot be justified under the commerce clause of the U.S. constitution, which has for nearly two centuries been used to expand federal spending power. This is a huge issue that goes to the division of powers in a federal state, one with which we are very familiar in Canada.

Both parts of the decision were decided by a 5-4 vote, and in both instances the swing vote was Chief Justice John Roberts, siding with four liberal justices to uphold the mandate, and with four conservative colleagues to assert the constitutional division of powers.

As Roberts wrote in the majority opinion on the mandate: “The requirement that certain individuals pay a financial penalty for not obtaining health insurance, may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass on its wisdom or fairness.”

But as he also wrote for the majority on limiting federal powers: “the commerce clause is not a general licence to regulate an individual from cradle to grave.” This is the “broccoli” argument – that, theoretically, Washington could invoke the clause regulating interstate commerce, in commodities such as food, to force America to become a vegetarian nation.

On a political level, upholding the mandate was a huge victory for Obama, especially in the run-up to November’s presidential election. He ran on health reform and won on it in 2008. And he got it passed by Congress in 2010, spending a huge amount of political capital to do so when he probably should have been focused on digging the economy out of the Great Recession.

Obama has now succeeded where every president from Franklin Roosevelt to Bill Clinton failed, in passing public health care in a country whose reliance on private insurance has deprived millions of Americans of any coverage at all, and this in the richest country in the world. It is the signature achievement of his first term, though it is still the economy that will determine whether he receives a second one.

Whether Obamacare is good policy or not, it was supported by the voters in an election where Obama ran as the messenger of “hope and change.”

And as Roberts wrote: “It is not our job to protect the people from the consequences of their own political choices.”

But while a historic political victory for Obama, the ruling limiting the use of the commerce clause is probably more consequential in the legal and constitutional sense. It is certainly more problematic in terms of setting precedent on which future cases will be argued and adjudicated.

Moreover, the court also ruled that Washington can’t force the states to participate financially in expanding Medicaid, the program that provides health coverage for millions of Americans living below the poverty line. The idea was to cover the poor who would never be able to buy insurance coverage through the mandate.

So while confirming the legitimacy of Obama’s health reform, the court has also affirmed a federalist principle that American conservatives have been arguing for decades. In this Solomonic judgment, Roberts is the one who divided the constitutional baby.

 
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