The Supremes and Us

You could have knocked me over with a feather when the Supremes upheld the Affordable Care Act this morning.  When I learned that Chief Justice John Roberts was the deciding vote, I was just plain stunned by disbelief.  What happened here?  How did Roberts end up on this end of a law he clearly dislikes?

The Supreme Court demonstrated its outside the fray quirkiness yet again.  In 1803, cast your minds back, Chief Justice John Marshall first used judicial review in a Federal court.  The Constitution doesn't grant that power to the courts, Marshall just took it.  Judicial review had been used in a very limited way in state courts prior to that, but Marshall's application of the principle to Federal law was new.  There was no legal objection from the United States, so judicial review became part of the law of the land.  Over the 200 plus years since Marbury v Madison, judicial review has become the most significant responsibility of the court.  Left and right have railed against judicial activism when the courts haven't seen things their way, but the principle has stood firm.

So how does this factor into today's decision beyond the usual prerogatives of the Supreme Court?  When the Justice Department mounted its defense against suits aimed at overturning the law, there was a debate about how to defend the individual mandate.  One side wanted to use the constitutional  power of the U.S. to regulate interstate commerce to justify the individual mandate.  The other side wanted to use the constitutional power of the U.S. to levy and collect taxes to justify the mandate.  Personally, based on my extensive experience in constitutional law (OK, so I don't have actual experience in constitutional law but I was a history major in college and have read a bunch of stuff), I favored using the taxing power because I believe there are adequate precedents already.  We are all compelled to pay into Social Security and Medicare as well as unemployment insurance and withholding.  The Administration opted to use the commerce clause because opponents would find the concept of a tax a ripe, juicy target for political attack in these days of the reign of King Grover of Norquist, the most powerful person in the country.

Turns out that the Chief Justice agreed with me (so there!).  The Court's majority ruled that using the commerce clause was unconstitutional.  While Roberts agreed with that, he said that it was constitutional under the taxing power and, therefore, joined the minority, who still felt that the commerce clause was OK, to uphold the law.  Pretty neat, huh?  I'll bet Scalia and Alito wet themselves when Roberts told them.  As usual Thomas displayed his desire to get out of all this and get back to the copy of "Long Dong Silver" he keeps in his office, and the one at his home.

Before the Tea Party types get their panties all in a knot, here are a few things that the law does.

1. Allows children to stay on their parent's plan until they turn 26. (currently 18 million families are using this benefit that is already in place).
2. Children cannot be denied coverage because of prior existing conditions. (in effect now)
3. Closes the Medicare Part C donut hole. (The donut hole is already 25% less thanks to the law.)
4. Provides Medicare recipients with free preventative screenings to reduce costs.
5. Removes lifetime caps on insurance benefits.
6. Prohibits insurance cancellation for people who get sick while covered.
7. Regulates what percentage of premium dollars insurers may use for non-medical costs such as CEO salaries, advertising and administration, and requires that consumers get rebates if those ceilings are exceeded. (this went in effect last November, and you may be getting a check from your insurance company in August if they were guilty)
8. Gives tax credits to small businesses (less than 50 employees) who agree to offer insurance to their employees.
9. Prevents insurers from charging more for women than men (2014).
10. Insurers are not allowed to decline coverage for adults with prior existing conditions (2014).
11. Requires insurers to allow free mammograms and other preventive services.

There are lots of additional things too but you get the idea.  Typically, pollsters have found that people who say they oppose the law approve the things it does.  Go figure. 

So while this SCOTUS has pissed me off plenty, I'm happy with today's ruling.  While the best performance by the Supremes I've ever seen was during the annual Motown Review from the balcony of the Apollo Theatre in New York at a midnight Saturday show back in 1964, this performance was pretty satisfying, although I do miss Diana Ross.