I know that the Obamacare verdict was a while ago, and that perhaps I ought to have written about it some time ago, but to be honest, I was struggling to comprehend the fact that there are some countries in the West that don’t have some kind of universalised healthcare system. I was talking to my Anglo-American cousin a while ago, and he was saying that from his perspective, there were some things that made up a kind of European cultural-political hegemony; some assumptions about the role of the state, in particular, as the provider of healthcare, benefits, and in many cases, transportation. Anyway, for the purposes of this post, I want to make clear that I disagree with Obamacare on a lot of ideological levels – I dislike the role it marks out for the private sector – but on a practical level, anything that extends healthcare coverage towards the poorest Americans must be seen as progress, and that is what I think Obamacare is.
The shock of Obamacare, and of the Supreme Court battle that followed, is not the fact that ultimately Obamacare was deemed to be a constitutional exercise of US Government power, but that there was a serious chance that it might not be deemed constitutional. Where was the controversy about the Obamacare/Romneycare (as I prefer to call it) model when it was implemented by Mitt Romney in the state of Massachusetts? Where was the controversy over its constitutionality when it was proposed by the Heritage Foundation – the right-wing think tank that now comes up with the numbers for Paul Ryan’s budgets and George Bush’s tax cuts? The fact was, that by the time Obama proposed and implemented his healthcare plans, the model he used was not one proposed by some “radical” European social democrats, but one developed by a right-wing think tank and implemented by a Republican governor. It wasn’t unprecedented, and it pretty much clearly wasn’t unconstitutional either. What we see most clearly from the stink that was manufactured when Obama tried to implement his healthcare reforms, and in the ensuing Supreme Court case, is how far American politics, and American judicial politics (in Europe we think that’s a contradiction in terms) has shifted to the right. A few years ago, a constitutional case against the Romneycare model would’ve been almost unthinkable, and our dear friends the Heritage Foundation reckoned that Romneycare “[was] not an unreasonable position, and one that is clearly consistent with conservative values.” Funnily enough, by 2009, they’d changed their minds, and “[Obamacare] was both unprecedented and unconstitutional”.
The Five-Four decision in the Supreme Court, was more interesting for how ideologically polarised it revealed the court to be, than for the fact that it upheld the bill. Roberts may have disappointed the frankly fucking mad ideological conservatives who got him into the Supreme Court, but the case should not have been a difficult one to decide on, and, as I’ve argued, the precedent was clear enough, but he certainly showed how ideologically disparate the court has become. Though Roberts sided with the four Liberal Justices to find Obamacare constitutional, the decision that he wrote still underscores the shift to the right in the Supreme Court, and in Judicial Politics. Roberts declared that Congress was not acting under the Commerce Clause, which had been the main argument made by the Government, but instead was able to continue implementing the ACA as a tax. The argument he put forward is less convincing, and seems to lack the judicial precedents that the Commerce Clause arguments had, but in such a constitutional storm, whatever port can be found will do. The fact is that Roberts’ narrow, right-wing-small-government interpretation of the Commerce Clause is now the law, and that will surely damage future attempts at such reform.
Given this change in the general interpretation of the Commerce Clause, perhaps we might think that far from Roberts turning his back on the conservatives who put him into the Court, but instead helping them out, if only they had some foresight. His definition of the Commerce Clause, as I said, is now the law of the USA, and may provide fertile ground for challenging future Democratic legislative programs. Furthermore, in a Court so often accused of being strictly partisan, Roberts’ apparent crossing of the left-right chasm will mean that his motives will be beyond reproach when the Supreme Court considers the other cases that are coming before it. Now, by upholding Obamacare, Roberts has given himself a licence to side with the conservatives (and not be accused of naked partisanship) when striking down including Affirmative Action in college admissions, large sections of the Voting Rights Act and upholding the spiteful Defence of Marriage Act.
Ed: All errors in this are simply proof as to why I don’t post about US politics. (And as a side, I somehow wonder what kind of democracy the United States really is when the signature policy of a popularly elected president runs the risk of being struck down by nine unelected judges, measuring the legality of something against the intentions of some rich, white men over two hundred years ago).