In “Modesty and Audacity” Bobo gurgles that self-restraint of Chief Justice John Roberts Jr. has allowed for a process of discovery and innovation to enter the health care debate. Prof. Krugman considers “The Real Winners,” and says the Supreme Court ruling upholding Obamacare certainly is a big victory for the president, all right, but the real winners are people like you. Here’s Bobo:
Washington is full of arrogant people who grab power whenever they get the chance. But there is at least one modest minimalist in town, and that’s John Roberts Jr.
In his remarkable health care opinion Thursday, the chief justice of the Supreme Court restrained the power of his own institution. He decided not to use judicial power to overrule the democratic process. He decided not to provoke a potential institutional crisis. Granted, he had to imagine a law slightly different than the one that was passed in order to get the result he wanted, but Roberts’s decision still represents a moment of, if I can say so, Burkean minimalism and self-control.
Roberts and six colleagues also restrained the power of the federal government to sanction the states. And, perhaps most important, he restrained future Congressional power.
Over the years, the commerce clause in the Constitution has been distorted beyond recognition, giving Congress power to regulate all manner of activity (or inactivity). Roberts redefined the commerce clause in a way that limits the power of Washington. Congress is now going to have to be very careful when it tries to use the tax code and other measures to delve into areas that have, until now, been beyond its domain.
Roberts’s modest stance is generally consistent with how he has behaved over the last several years. There’s been a lot of overwrought and misleading liberal commentary on the supposed ideological activism of this court. In fact, with a couple obvious exceptions, this court has been remarkably modest. According to a 2010 analysis by The Times, the Warren, Burger and Rehnquist courts overturned an average of nine laws a term, while the Roberts court has overturned an average of three laws a term.
And here’s the biggest gift that Roberts gave to the nation: By restraining the power of the court to shape health care policy, he opened up space for the rest of us to shape that policy through the political process. By modestly refraining from rewriting health care laws himself, he has given voters and politicians more room to be audacious.
The decision doesn’t end the health care debate; it accelerates it. I spoke to some conservatives on Thursday. They were disappointed by the ruling, but they were delighted with the language on the commerce clause. Most of all, they were excited about the coming political debate. They remain sure that Obamacare is a fatally unpopular and flawed Rube Goldberg device and were energized to work harder for its repeal.
I spoke to some liberals Thursday, too. It was striking how quickly their comments moved from the past to the future — to the need to ramp up the exchanges, modernize delivery systems and build on the bundling experiments.
People in both camps seem to agree: We’ve had a big argument about health care over the past several years, yet we haven’t tackled the big issues. We haven’t tackled the end-of-life issues. We haven’t fixed the medical malpractice system. We are only beginning to correct the antiquated administrative systems.
Crucially, we haven’t addressed the structural perversities that are driving the health care system to bankruptcy. Obamacare or no Obamacare, American health care is still distorted by the fee-for-service system that rewards quantity over quality and creates a gigantic incentive for inefficiency and waste. Obamacare or no Obamacare, the system is still distorted by the tax exclusion for employer-provided plans that prevents transparency, hides the relationship between cost and value and encourages overspending.
Liberals tend to argue that major structural changes can be made within the framework of Obamacare. Republicans tend to believe that the perverse incentives can only be corrected if we repeal Obamacare and move to a defined-benefit plan — if we get rid of the employer tax credit and give people subsidies to select their own plans within regulated markets.
Personally, I think the Republicans’ defined-contribution approach is compelling. It’s a potentially effective way to expand coverage while aligning incentives so that people make cost-conscious, responsible decisions. But the truth is neither I nor anybody else really knows what works. We’re going to have to go through a process of discovery. We’re going to have to ride the period of rapid innovation that is now under way.
Hospitals are changing rapidly. Federal policy will change rapidly, too. The policy changes over the next decade will overshadow Obamacare.
Roberts has made a period of innovation and change more likely. He did it by taking the court off center stage and by letting the political process play out.
Self-restraint. It’s a good thing. More people should try it.
Here’s Prof. Krugman:
So the Supreme Court — defying many expectations — upheld the Affordable Care Act, a k a Obamacare. There will, no doubt, be many headlines declaring this a big victory for President Obama, which it is. But the real winners are ordinary Americans — people like you.
How many people are we talking about? You might say 30 million, the number of additional people the Congressional Budget Office says will have health insurance thanks to Obamacare. But that vastly understates the true number of winners because millions of other Americans — including many who oppose the act — would have been at risk of being one of those 30 million.
So add in every American who currently works for a company that offers good health insurance but is at risk of losing that job (and who isn’t in this world of outsourcing and private equity buyouts?); every American who would have found health insurance unaffordable but will now receive crucial financial help; every American with a pre-existing condition who would have been flatly denied coverage in many states.
In short, unless you belong to that tiny class of wealthy Americans who are insulated and isolated from the realities of most people’s lives, the winners from that Supreme Court decision are your friends, your relatives, the people you work with — and, very likely, you. For almost all of us stand to benefit from making America a kinder and more decent society.
But what about the cost? Put it this way: the budget office’s estimate of the cost over the next decade of Obamacare’s “coverage provisions” — basically, the subsidies needed to make insurance affordable for all — is about only a third of the cost of the tax cuts, overwhelmingly favoring the wealthy, that Mitt Romney is proposing over the same period. True, Mr. Romney says that he would offset that cost, but he has failed to provide any plausible explanation of how he’d do that. The Affordable Care Act, by contrast, is fully paid for, with an explicit combination of tax increases and spending cuts elsewhere.
So the law that the Supreme Court upheld is an act of human decency that is also fiscally responsible. It’s not perfect, by a long shot — it is, after all, originally a Republican plan, devised long ago as a way to forestall the obvious alternative of extending Medicare to cover everyone. As a result, it’s an awkward hybrid of public and private insurance that isn’t the way anyone would have designed a system from scratch. And there will be a long struggle to make it better, just as there was for Social Security. (Bring back the public option!) But it’s still a big step toward a better — and by that I mean morally better — society.
Which brings us to the nature of the people who tried to kill health reform — and who will, of course, continue their efforts despite this unexpected defeat.
At one level, the most striking thing about the campaign against reform was its dishonesty. Remember “death panels”? Remember how reform’s opponents would, in the same breath, accuse Mr. Obama of promoting big government and denounce him for cutting Medicare? Politics ain’t beanbag, but, even in these partisan times, the unscrupulous nature of the campaign against reform was exceptional. And, rest assured, all the old lies and probably a bunch of new ones will be rolled out again in the wake of the Supreme Court’s decision. Let’s hope the Democrats are ready.
But what was and is really striking about the anti-reformers is their cruelty. It would be one thing if, at any point, they had offered any hint of an alternative proposal to help Americans with pre-existing conditions, Americans who simply can’t afford expensive individual insurance, Americans who lose coverage along with their jobs. But it has long been obvious that the opposition’s goal is simply to kill reform, never mind the human consequences. We should all be thankful that, for the moment at least, that effort has failed.
Let me add a final word on the Supreme Court.
Before the arguments began, the overwhelming consensus among legal experts who aren’t hard-core conservatives — and even among some who are — was that Obamacare was clearly constitutional. And, in the end, thanks to Chief Justice John Roberts Jr., the court upheld that view. But four justices dissented, and did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship.
The point is that this isn’t over — not on health care, not on the broader shape of American society. The cruelty and ruthlessness that made this court decision such a nail-biter aren’t going away.
But, for now, let’s celebrate. This was a big day, a victory for due process, decency and the American people.