Friday, June 29, 2012

A Lifesaver for Democratic Governance

From the beginning the theatrical current conflict over expanding health coverage to include most Americans has had more than its share of absurdities. The centerpiece of the legislation, the so-called “individual mandate” comes from 1990s Republican proposals for health insurance reform and was a key component of Massachusetts Governor Mitt Romney’s signature achievement in office. On the other hand, candidate Barack Obama, campaigning against Hilary Clinton in 2008, opposed the idea. Fast forward a few years, and the argument is being replayed, but this time with President Obama supporting the so-called “individual mandate” and Romney and the Republicans opposing it. This may be good political theater, but little else.  

There never really was a serious constitutional issue to be resolved, just a political conflict to be adjudicated in constitutional disguise – another example of our American addiction, long ago noted by De Tocqueville, to try to resolve political issues judicially. The great favor the Supreme Court has done for the country in this case is to acknowledge that it is for the political process and elected politicians – legislators and executives – to address and try to resolve pressing problems. American healthcare – a leviathan which incentivizes extravagant and wasteful expenditure, while leaving millions without adequate health care at all – is clearly such a pressing problem. The ongoing conflict over whether to continue moving forward in addressing this problem is now returned to the political process – the place it always belonged. 

Meanwhile, the Court – which is to say the Chief Justice, the star player in the decision and (apart from the millions who will now be assured of healthcare) perhaps the biggest single political winner – has reshaped our constitutional landscape in directions both promising and perilous. 

Promising is the Chief Justice’s choice in favor of judicial restraint – revealed in his invocation of the principle (Hooper v. California) that “every reasonable construction must be resorted to in order to save a statute from unconstitutionality. Since at least the 1960s, it has become common for advocates of radical ideas – of either the left (e.g., overturning abortion and marriage laws) or the right  (e.g., opposing campaing finance reforms and the Affordable Care Act) – to turn to the judiciary to try to produce results not  so readily achievable through the political process. The harm this has done to democratic governance has been immeasurable. And it has been one of the single most significant contributors to the total polarization of our society.  It would be utopian to expect that this is going to stop any time soon. But certainly the Chief Justice’s decision in this critical case not to let the Court be used in a partisan manner to undo the democratic process of legislation is a welcome development. 

The Court also imposed restraint upon Congress. The power to regulate interstate commerce is not to be interpreted as infinitely malleable and expansive. How perilous that may turn out to be, whether that will unduly burden the government’s ability to address national needs, remains yet to be seen.  The unexpected Medicaid part of the decision also seems to me counter-intuitive. Medicaid is, after all, a federal program which gives states money to which they are not automatically otherwise entitled. Federalism is problematic enough without further empowering states to be obstructionist.  

All that said, however, the Chief Justice’s forcible imposition of restraint upon his Court it seems to me, has thrown democratic governance a welcome lifesaver. And that is no small matter.

1 comment:

  1. " has been one of the...most significant contributors to the total polarization of our society." I think I agree with his and your assessments, except that, as a Southerner, I must acknowledge the role of the Court in reducing statutory racism.
    I'm less convinced about federalism being a problem, since the principal of subsidiarity seems perfectly reasonable and even more democratic to me.
    I think the better approach would have been a federal mandate for single-payer and comprehensive state healthcare systems, with the possibility of voluntary interstate cooperative agreements. But, so be it. The poor will now have the health care access they should have had since the 1930's.