When the Supreme Court affirmed the Affordable Health Care Act, liberals were running everywhere expressing love, kisses, and euphoria for the decision. Nobody has been talking about the destructive parts of the Court's actions. Upholding the expansion of health care is a good decision for the American people, but the Court made a business-based decision. The Court held the bill constitutional where it goes through the insurance companies, but it gives the States the right not to expand Medicaid or create the exchanges for the 30 million people without health insurance - even though states will be hard pressed to refuse the near-full federal funding for the expansion. Most significant, the decision denies the authority of the Commerce Clause, putting the nation's entire social safety net at risk.
What the decision does do, using the taxing authority of the Constitution, is assure that everybody gets covered for health care - no one can be turned down. The President's bill guarantees that everyone is now covered for pre-existing conditions, preventive care, mammograms, colonoscopies, seniors' drugs, children on parent's plans through 26, no lifetime caps, and this is a key part, requires that 80 percent of the benefits go to patients, not to administrators, prohibiting insurance companies from overcharging for their salaries and administrative costs. The insurance company overcharges -paying them as middlemen—were one of the factors that made us pay twice as much for health care as any nation on earth.
Thanks to the decision and the law, everyone in America who has been overcharged, and that is effectively everyone with a policy, is soon getting a BILLION dollars in checks. The insurance companies were holding off on these checks until the decision. Now they must go forward. An average of $500 a person is going out in checks. The law's making the insurance companies fall in line is why congressional Republicans and Romney hate this and are still screaming for repeal. They get hundreds of millions of dollars in campaign money from the insurance companies, and the insurance companies hate that they will now be overseen and will have to return anything more than 20% in profits. The Congressional Budget Office says we are saving $100 billion this decade and a $1 trillion next decade because of the bill.
The Republicans, by six to one, have outspent Democrats in advertising defining the bill. That is one of the reasons that the overall bill is at a 20-point disadvantage. However, when you tick off the provisions, the pre-existing conditions, preventive care, mammograms, colonoscopy, seniors drugs, children on parents' plan, no lifetime caps, insurance companies having to spend 80 percent on benefits - people love them by a 40-point margin. Romney says "on Day One" he'll "repeal Obamacare." The only thing Romney can legally do on "Day One", should he win, is what Obama has already done, give the States the right to do something better. That's the executive order that Obama already issued. Romney can't unpass the bill. He doesn't have the power.
However, now that the Court ruled under "taxing" authority rather than the Commerce Clause, that could allow Republicans to use 51 votes, if they take over the Senate, to stop Federal funding provisions of the bill, rather than the 60-vote requirement for general provisions. Dropping the funded "mandate" will affect 1-2% of people, even if they succeed. The rest of the bill will survive regardless.
The far more serious danger is that because the Court AGREED 5-4 NOT to use the Commerce Clause because the five Republican-appointed justices said it was unconstitutional (the Court used the tax authority instead), now they may disapprove EVERYTHING under the New Deal, Fair Deal, and Great Society—our entire social safety net—under this new interpretation of the Commerce Clause. That's the entire first half of Roberts' decision, the first 45 pages of which were so negative that both CNN and Fox at first got the decision WRONG and announced that the health bill was overthrown. They later corrected the announcement. But that was not an idle reading of the first 45 pages—it lays the basis for throwing out the country's critical social programs down the road, just as they recently threw out 75 years of bans against corporate campaign contributions.
Cong. John Conyers, Detroit's member who is Democratic Leader of the House Judiciary Committee that oversees the Court and would again take over as Committee Chair if the Democrats regain Congress, was invited by the Court to hear the oral arguments. He told us, "As far as this Court is concerned, this was one of the better decisions, although the Medicaid part was terrible and I didn't agree with them on the Commerce Clause. But you have to take each decision case by case."
We will see what other cases bring, but the danger signals are strong indeed.
Robert Weiner was a White House spokesman and worked as senior staff for President Bill Clinton, Reps. John Conyers, Charles Rangel, Claude Pepper, Ed Koch and Sen. Ted Kennedy. He wrote the epilogue to Bankole Thompson's groundbreaking book, "Obama and Christian Loyalty." Richard Mann is executive assistant and senior policy analyst at Robert Weiner Associates.