CNN’s chief political analyst Gloria Bolger, in the article Epic failure by Washington sets us adrift1, puts forward the proposition from the late Sen. Daniel Patrick Moynihan that, “Great changes in national public policy should never be erected on slender partisan majorities.” She uses this to criticize the health care reform bill and the Obama Administration. While she gives the White House some due by saying that the Republicans “weren’t interested in their plan,” it still feels like she’s practicing a bit of historical revisionism.
It is true that in the end, the health care law passed by means of some unusual procedures including the Senate’s use of reconciliation to avoid a filibuster. It is also true that the final vote in the House was a close 219-212, with all Republicans and 34 Democrats voting against. Still, the history of the bill includes members of both parties working together, with a number of Republican ideas included in the bill, and some Democratic ones tossed out, in the name of compromise.
Starting with the ingredient to which there is the most opposition, the individual mandate, in a June 3, 2009 article in the New York Times (Obama Open to a Mandate on Health Insurance2), Robert Pear reports that, “President Obama said Wednesday that he was receptive to Congressional proposals that would require Americans to have health insurance and oblige employers to share in the cost. But he said there should be exemptions for people who cannot afford insurance and for small businesses in general.” President Obama indicated his opposition to the individual mandate during his campaign for the presidency, but in June of 2009 is deferring to Congressional leaders in the name of compromise and in the hopes of bipartisan support. Much of the rancor directed at President Obama over the individual mandate in the health care reform bill is misplaced.
Bipartisanship was quite evident in the early months of the reform effort. In a February, 2009 column3, the author at PoliticusUSA quotes Newt Gingrich’s strong support for a health care overhaul. He is quoted as saying, “President Obama is right: we cannot wait any longer to fix the problems we face in health – they are beyond critical. We waste billions of dollars every day and people die unnecessarily every day at the hands of a broken, fragmented healthcare system…There is a time for Republicans and Democrats to stand their ground when they must; but it is equally as important to have the courage to collaborate when they should. Health reform is one of those moments.” In July, the New York Times carried an article by David M. Herszenhorn and Robert Pear (Health Policy is Carved Out at Table for 64), describing the 6 Senators, 3 Republicans (Michael B. Enzi, Charles E. Grassley, and Olympia J Snowe) and 3 Democrats (Max Baucus, Kent Conrad, and Jeff Bingaman) who were negotiating a bipartisan plan which became the basis for the health care reform act. In an Op-Ed in the Washington Post August 5, 2009 (Working Across the Aisle for Health Reform5), Senators Ron Wyden and Robert F. Bennett write about 12 Senators from both parties working to craft a bipartisan plan for health care reform. And as late as August, Ezra Klein interviews Lindsey Graham (Is There a Deal to be Made on Health Care? An Interview With Sen. Lindsey Graham6), who is quoted as saying, “We refuse to let partisanship kill health reform.”
While the bill did not end up a paragon of bipartisanship, there was plenty of it along the way.
That early bipartisanship led to compromises between Democrats and Republicans and the inclusion of a number of Republican ideas in the final bill. In a November 8, 2010 recap of the health care law, MediaMatters (Fox attempts to rewrite health care reform history7) delineates many of the Republican ideas which made it into the bill. President Obama, during a House GOP retreat visit, mentioned
- Creating a high-risk pool for uninsured folks with preexisting conditions
- Allowing insurance companies to sell coverage across state lines
- Creating pools where self-employed and small businesses could buy insurance
- Letting kids remain covered on their parents’ insurance until they’re 25 or 26
- Incentivizing wellness
- Creating an affordable catastrophic insurance option for young people
These ideas are reiterated by Ezra Klein, in a Feb 2010 blog post8, who lists fundamental features of the health care bill which come from the four planks of GOP’s Solutions for America, including
- Let families and businesses buy health insurance across state lines
- Allow individuals, small businesses, and trade associations to pool together and acquire health insurance at lower prices, the same way large corporations and labor unions do
- Give states the tools to create their own innovative reforms that lower health care costs
- End junk lawsuits
Among the Democratic ideas tossed out in the name of compromise was the public option9.
The reform bill is now in the hands of the Supreme Court, but not before another dustup. President Obama, in an April 2, 2012 Rose Garden press conference, stated, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this court will recognize that and not take that step.” This led to an avalanche of criticism by the conservative blogosphere and what was described by Jeffrey Toobin as a “hissy fit”10 on the part of Federal Judge Jerry Smith, who was hearing a case involving a section of the health care bill, and who gave the government lawyer the homework assignment of writing a 3-page, single-spaced letter explaining the administration’s views on judicial restraint; Attorney General Eric Holder complied.
While Politifact.com (April 4, 201211) rates the remark False, it does so mostly because it felt compelled to judge the remark literally, given that President Obama had not explicitly stated the historical context in which the remark was to be understood. The article notes that the term “strong majority” is not accurate when describing a House vote of 219-212, but even though, as it notes, the original vote in the Senate barely broke the filibuster level with a tally of 60-39, and had a final tally of 56-43, those are still significant majorities. The article also describes the accuracy of “unprecedented”. While the Supreme Court has clearly overturned laws passed by Congress, the general view of commentators is that the Supreme Court has not overturned such a significant Congressional act since the 1930’s, nor such a significant act dealing with an economic issue since, as the President himself mentioned, “Lochner”, “a controversial 1905 decision striking down a New York labor law because it interfered with employer/employee contract rights”. (Michael Tomasky12 illuminates Obama’s words, assuming he was using the strict term “Lochner” to refer to conservative jurisprudence in what liberals refer to as the “Lochner era” between the 1905 of the aforementioned case and around 1937.) The Politifact article continues by quoting Norman Ornstein of the conservative American Enterprise Institute, “At least since the early part of the New Deal, when you had a Supreme Court that blocked at least a few initiatives of the new Roosevelt administration, we haven’t had a major social policy overturned,” he said. “And I don’t think any of them were as sweeping or significant in their effect on the country as this one (the health care law). They didn’t overturn Social Security; they didn’t overturn the (Works Progress Administration).” Lisa Knepper adds13, quoting a 2011 Institute for Justice study, that the Supreme Court, between 1954 and 2002, struck down two-thirds of a percent of laws passed by Congress and less than one-twentieth of a percent of laws passed by state legislatures. So while “unprecedented” is clearly too restrictive a term, it would be “extraordinary” or “exceptional” for the Supreme Court to overturn such an important law as the health care reform act.
What will the Supreme Court decide? The immediate reaction to the hearings and the poor performance by Solicitor General Donald Verrilli was that the key justices, Chief Justice John Roberts and Justice Anthony Kennedy, by the tone of their questioning and the poor responses from Mr. Verrilli, would vote against the individual mandate, and possibly the whole act. Since then, commentators have weighed in14, and a number think it will actually go 6-3 in favor.
My best guess is that the justices will vote 6-3 to uphold the individual mandate, and by extension, the whole act. I’m looking forward to the conservative commentary which is sure to explode with such a decision, and their new, improved takes on judicial review and judicial activism.
1Epic failure by Washington sets us adrift
2Obama Open to a Mandate on Health Insurance
3Newt Gingrich Supports Obama on Health Care Reform
4Health Policy is Carved Out at Table for 6
5Working Across the Aisle for Health Reform
6Is There a Deal to be Made on Health Care? An Interview With Sen. Lindsey Graham
7Fox attempts to rewrite health care reform history
8The six Republican ideas already in the health-care reform bill
9‘Public Option’ in Health Plan May Be Dropped
10Court’s Obama order a ‘hissy fit’
11Obama attaches stark terms to possible Supreme Court ruling on health care law
12How the Supreme Court Ended Up on the Ropes
13‘Judicial activism’ a convenient bogeyman
14 Too numerous to list; just Google “supreme court will rule 6-3 to uphold health care law”