I’ve read and heard several analyses of the looming challenge to the Affordable Care Act (aka Obamacare) and none of these analysts believe that the challenge represents anything other than a clever rhetorical flourish. The challenge lacks any legal foundation. This article from Linda Greenhouse, legal reporter for the New York Times sums up the challenge nicely.
Free of convention, and fresh from reading the main briefs in the case to be argued before the Supreme Court next week, I’m here to tell you: that belief [that the Affordable Care Act’s individual mandate is unconstitutional] is simply wrong. The constitutional challenge to the law’s requirement for people to buy health insurance — specifically, the argument that the mandate exceeds Congress’s power under the Commerce Clause — is rhetorically powerful but analytically so weak that it dissolves on close inspection. There’s just no there there.
The legal argument made by the challengers is based on one word: “unprecedented.”
Unprecedented is a description, not an analysis. What’s unprecedented is the singular determination of the Republicans both on Capitol Hill and in the statehouses to deprive President Obama of his major domestic achievement.
The countless unprecedented things that Congress has done over the centuries were not, for that reason, unconstitutional. Social Security, Medicare, the Employee Retirement Income Security Act (Erisa), and the Emergency Medical Treatment and Labor Act, the 1986 law passed to prevent hospitals from refusing to care for uninsured patients in acute distress, all come to mind. (From the perspective of today’s toxic politics, it’s a miracle that any of these laws actually got passed, but that’s a separate issue.) So there must be some problem with the Affordable Care Act other than “never before.”
I expect that the ACA, such as it is, will stand and hopefully serve as a stepping stone towards the eradication of the parasitic private health industry and it’s replacement by a suitable single-payer system.
Unprecedented, indeed. But, even more unprecedented has been the GOP’s record use of the filibuster in the Senate, its determination to block most legislation and Obama’s appointments to head up vital departments and fill vacant court seats, as well as the party’s scheme to re-gain power by gerrymandering and suppressing the vote, attacking women’s rights issues and the logic of pure science while spending billions of unaccounted dollars to smear opposition candidates while lying to and fear-mongering voters. That’s the most stunning, unprecedented group of political acts, right there.