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Affordable Care Act ruling raises question about role of government

The Times of Trenton Newapaper
By Irwin Stoolmacher

The Supreme Court has decided that the Affordable Care Act’s “individual mandate,” which required most Americans to have health insurance by 2014 or pay a penalty, is constitutional under Congress’ power to tax.

Most Democrats believe that the ACA will positively affect the lives of millions of Americans in the following ways starting in 2014: no more caps on coverage; no more getting turned down for coverage based on pre-existing medical conditions; no more booting kids off of a parent’s policy at age 21; no co-pay for preventive care; and a state insurance marketplace designed to reduce prices and coverage for more low-income Americans.

Most Republicans have a diametrically opposite view. They think the ACA will increase health insurance premiums; hurt the quality of health care by limiting access; result in longer wait times for patients; and further increase the deficit. Conservatives agree with Gregory J. Sullivan, who, in his July 4 guest column in The Times, wrote: “the most audacious expansion of the power of the federal government in our time now has constitutional sanction.”

While some see the Supreme Court decision as affirming the Democrats’ expanded view of government and denying the Republican Party’s more limited view of government, I don’t see it that way. Chief Justice Roberts’ circuitous decision, based on Congress’ taxing powers, gave liberals health-care reform while giving his fellow conservatives a new doctrine that will severely limit congressional power, which they have been seeking since the New Deal. The chief justice affirmed the conservative principle that Congress lacks the power to require citizens to buy insurance they don’t want by imposing a penalty upon them under the Commerce Clause.

On this point, Jeffrey Tobin, author and legal analyst for CNN, wrote recently in The New Yorker: “Since 1937, the Supreme Court has recognized that the Commerce Clause of Article I of the Constitution gives Congress a free hand to address national economic problems. And few national problems are bigger than those of the health-care system... . Over the years, Congress has passed many laws that attempt to address health-care issues: Medicare, Medicaid, the prescription-drug benefit ... . Without exception, and without even much controversy, the courts have found these laws to be constitutional. That the constitutionality of the ACA was even called into question is testimony how far the center of gravity in the American judiciary has shifted to the right.”

The court ruled that Congress had exceeded its power under the Commerce Clause and was not authorized to direct individuals to purchase particular products. According to the ruling, Congress did not continue to have the power under the Commerce Clause to proscribe and regulate behavior for whatever they perceived as the public’s benefit. As George Will wrote, “The court ... built a fence around the Commerce Clause.”

Roberts’ ruling on the Medicaid provisions of the ACA will open the floodgates to new state challenges of other Washington mandates. According to Will, “on Medicaid expansion, for the first time in history, a majority of states banded together to challenge the constitutionality of legislation and they won. For the first time since the New Deal, 75 years, the Supreme Court has overturned a federal statute on the grounds that by coercing the states, it undermines the dual sovereignty that is the heart of our federal position.” It is a clear win for limiting the scope of federal power.

At the core of the disagreement on the ACA are two fundamentally different views of the role of government. The right prefers a minimalist, small-government model. The left favors an active, interventionist role.

The conservative Republican attitude toward government is succinctly expressed in this provision taken from the Alabama Constitution: “That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions, it is usurpation and oppression.” It is a perspective that embodies these words by President Grover Cleveland: “[T]hough the people support the Government, the Government should not support the people.” Given this perspective, every government enactment must be opposed if it unnecessarily limits the rights of the individual to do as he or she chooses.

This is the polar opposite of the FDR paradigm that “government should do for the individual what he could not do for himself.” Eric Alterman writes in the recently published book “The Cause: The Fight for American Liberalism From Franklin Roosevelt to Barack Obama”: “Despite Americans’ historical aversion towards the trappings of a powerful central government, Roosevelt managed, in the crisis of the Depression, to provide an example for future generations to create a collective initiative aimed at social amelioration.”

I have little doubt that, for the foreseeable future, the Supreme Court will look askance at additional efforts by the federal government to address social problems that defy individual solutions. Likewise, I see the electorate responding affirmatively, in this time of limitations, to politicians whose clarion call is for tax reduction. Further, I see no abatement of the hyperpartisanship that characterizes our politics. For these reasons, I’m deeply concerned about whether there will be sufficient political will in the future to maintain the historic safety net we have provided for the least fortunate among us.