By Bill Schneider via Politico
“The mandate is not a legal command to buy insurance,” Chief Justice John Roberts wrote in his health care ruling Thursday. It’s not? Really? It sure sounds like it.
No, Roberts insisted, “It makes going without insurance just another thing the government taxes, like buying gasoline or earning income.”
With that bit of sophistry, the Supreme Court upheld the health care law and refrained from throwing some 50 million Americans off health insurance. Democrats are thrilled. They don’t really care how the court got there as long as it got there.
But it does make a difference how it got there. Because what the Supreme Court did was deny that health care is a right. In the court’s view, the right to health care has no constitutionally protected status — like abortion rights or gun rights. It’s just a benefit. Rights can’t be taken away. Benefits can.
If universal health care is a tax, it’s dispensable. Taxes can be raised or lowered or abolished. We do that all the time. “Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them,” the court said.
Could that be a partisan recommendation? It sure sounds like it. “It is not our job to protect the people from the consequences of their political choices,” Roberts wrote.
Don’t like the new health care law? Fine. Throw the bums out. Elect former Massachusetts Gov. Mitt Romney as president and vote in a Republican Congress and they promise the law will be gone. “I will do [it] on my first day if elected president,” Romney pledged. The Supreme Court certainly won’t stand in the way.
In his famous essay, “Citizenship and Social Class,” T.H. Marshall described the gradual expansion of citizenship rights in advanced industrial societies. First came civil rights — freedom of thought and speech and religion. Then came political rights — the right to vote and to organize parties and movements. Finally, the 20th century brought social rights, from “a modicum of welfare and security to the right to share to the full in the social heritage and live the life of a civilized being, according to the standards prevailing in society.”
Marshall, a British sociologist, published the essay in 1949, just after the postwar Labor government created the National Health Service and gave British citizens the right to health care. “We now have the moral leadership of the world,” health minister Aneurin Bevan declared.
As it happens, the United States was the first country in the world to grant citizens the right to education — a right granted by the states, not the federal Constitution. Even after last week’s Supreme Court ruling, the United States remains the only wealthy country that does not grant citizens the right to health care. The benefit, yes, at least for the time being. But not the right.
How secure is that benefit?
When the health care law passed in 2010, the theory was that it would become more popular as people got used to it and began to realize the benefits. That has not happened. Of course, most of the benefits will not kick in until 2014 — if then, because many states are resisting setting up the insurance exchanges that will make the law work. “Wisconsin will not take any action to implement ‘Obamacare,’” the Republican governor pledged after the Supreme Court ruling.
The health care law has had two problems from the outset. One is lack of public support. Americans favor the idea of universal health care. What they don’t like is the mandate — which sounds like government compulsion. Roberts claims it’s really a choice. You either pay for the insurance or you pay the tax. Your choice.
But guess what? Either way, you gotta pay.
The other problem is partisanship. Not a single Republican in Congress voted for the law. That’s why Republicans call it “Obamacare.” It’s his law, not theirs. And Republicans are determined to destroy it. Republicans are now calling the health care law the biggest tax hike in history. They want to argue that President Barack Obama broke his 2008 promise not to raise “a single dime” of taxes on the middle class.
But there’s a problem. The health care plan that Romney signed into law in Massachusetts does exactly the same thing. Republicans would be forced to acknowledge that Romney raised taxes, too.
The health care law was not easy to pass, and it will not be easy to abolish. The Constitution, with its checks and balances and separation of powers, makes any kind of decisive action difficult. The most that Republicans may be able to do is try to sabotage the law by cutting off funding and curbing enforcement.
The court ruling amounts to a challenge to the Obama administration: If you want to keep the health care law, you’re going to have to sell it to the American public. That’s something the administration has never really done.
Speaking on CNN Sunday, White House chief of staff Jack Lew said, “We have a Supreme Court, and when it rules, we have a final judgment.”
In this case, however, the court has left the final judgment in the hands of the American people. And they’re still not convinced.
Bill Schneider is professor of public and international affairs at George Mason University and a resident scholar at Third Way.