Waiting for SCOTUS

Like just about everyone else, I am anxiously waiting to see what the Supreme Court will do about health reform. Already much of the commentary is partisan and political: What impact would overturning the Affordable Care Act have on the fortunes of President Obama or Mitt Romney? We have an understandable instinct to view such things through the lens of a partisan horserace. This case is so much bigger than that.

As Jeffrey Toobin rightly observed, the substance of the opinion is what really matters here. In 2010, Congress finally enacted a series of fragile and imperfect compromises to insure 32 million people and to address many problems of our dysfunctional $2.8 trillion health care system. Will the Supreme Court throw that away?

To put my own cards on the table, I share the sentiments expressed by Ronald Dworkin in the New York Review earlier this year:

If the Court does declare the act unconstitutional, it would have ruled that Congress lacks the power to adopt what it thought the most effective, efficient, fair, and politically workable remedy—not because that national remedy would violate anyone’s rights, or limit anyone’s liberty in ways a state government could not, or be otherwise unfair, but for the sole reason that in the Court’s opinion our constitution is a strict and arbitrary document that denies our national legislature the power to enact the only politically possible national program. If that opinion were right, we would have to accept that our eighteenth- century constitution is not the enduring marvel of statesmanship we suppose but an anachronistic, crippling burden we cannot escape, a straitjacket that makes it impossible for us to achieve a just national society.

My bet is that the Supreme Court will strike down the mandate but leave most of the bill intact. I could be wrong. Probably on Monday, we’ll find out just how activist the Supreme Court really is. At best, Congress and the President will soon face the unenviable task of enacting and implementing essential but delicate legislative fixes within an toxic atmosphere of partisan gridlock and a broader political debate that disdains the actual craft of public policy. Whatever happens, it won’t be pretty.

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