More on the ACA

Over at Salon, Paul Campos advances the argument, using Scalia’s dissent to the Court’s decision upholding most of the Affordable Care Act, that Roberts made a last-minute switch. He doesn’t follow David Bernstein in making dark accusations regarding “unidentified circles” that supposedly leaned on Roberts to come around or the “heat” supposedly applied by President Obama, “preemptively threatening to delegitimize the Court if it invalidated the ACA.” Nor does he suggest, as I did, that Scalia’s smokin’ dissent in Arizona v. United States was prompted by Roberts’ switch.

I think Roberts realized that if the Court overturned the ACA it would delegitimize itself. I think Roberts realized, at the last minute, that conservatives, stunned that the goddamn Democrats had actually won one, worked themselves up into a hysterical frenzy, convincing themselves that anything “bad” had to be unconstitutional as well, which, of course is exactly how President Obama and other liberals feel about the Court’s “infamous” Citizens United decision.*

At Slate, Jeff Shesol points out that Roberts’ decision, which was in fact huge—because, had the Court actually overturned the ACA, it would have been a major calamity, which is exactly what the country does not need at this time—was still much less than all that. The entire act should have been upheld, via the commerce clause. The Court should not, in this day and age, be lecturing us, as Roberts’ decision does lecture us, that if the constitutionality of the ACA were justified via the commerce clause, the United States would somehow be “not the country the Framers of our Constitution envisioned,” though, apparently, it’s OK to base it on the taxing power.

Roberts is really joining with the Scalia-led Gang of Four to start pecking away at congressional prerogatives to regulate the economy, and, surely, other areas as well. We can expect a lot more ingenious, not to say disingenuous, nit-picking over the next twenty or thirty years, all in the name of ensuring that the U.S. remains “the country the Framers of our Constitution envisioned,” even though that ought to be the job of we the living, rather than a handful of wig-wearing slave owners who have been in their graves for the past two hundred years.

As for the ACA itself, it’s going to be a very long haul, as Darshak Sanghavi, also at Slate, points out in some detail. The Republicans will put up enormous political resistance at both the federal and state level for some time to come, and that’s only half the battle. The massive costs of health care, and the massive resistance people feel towards treating health care rationally, guarantees massive problems down the road. I mean, I’m supposed to be rational about my own death? Thanks, dude, but no thanks. Just tell me I’ll live in perfect health forever. That’s all I ask. I’m entitled to that, aren’t I?