It was perilously close -- another 5-4 decision -- and it took Chief Justice Roberts to side with the majority in upholding the Affordable Care Act because the usual swing vote, Justice Kennedy, dissented.
Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.As Greg Sargent explains: "The court ruled that the mandate is defensible as a 'tax.' In so doing, it supported the administration’s argument that it’s within the proper scope of federal authority to incentivize the purchase of health insurance, in order to expand coverage to millions of Americans who have been left behind by the private market."
Democrats will breath a sigh of relief while Republicans plot their next move to gut the law. Which brings up a fascinating point about the entire debate on health care: how our polarized politics have radically altered what used to be a bi-partisan consensus on at least the ultimate goal -- providing health care to all Americans.
Ezra Klein explains that there was not always such a stark divide between Democrats who are committed to "provide every American with health insurance" and Republicans who are committed to "prevent any American from being forced to have health insurance."
Democrats and Republicans used to argue over how best to achieve universal coverage, but both agreed on the goal. The first president to propose a serious universal health-care plan was Harry Truman, a Democrat. The second was Richard Nixon, a Republican. In the 1990s, when President Bill Clinton was arguing for a national health-care system based on an employer mandate, Republicans were arguing for one based on an individual mandate.As Klein concludes: "The battle over the Affordable Care Act has largely distracted voters from this tectonic shift in the Republican Party. Yet unlike in past elections, in which even the most conservative Republicans argued that we should 'ensure that all Americans would have affordable, quality, private health coverage,' voters this year will choose between one party that supports universal health care and one that doesn’t, with health insurance for as many as 50 million voters hanging in the balance."
In the 2000s, Romney used the individual mandate to make Massachusetts the first state to actually achieve near-universal coverage. On the national level, Republicans as diverse as Newt Gingrich, Lamar Alexander and Lott joined him. Republicans sometimes like to present their support for the individual mandate as a youthful indiscretion, but as late as June 2009, Charles Grassley, the ranking Republican on the Senate Finance Committee, was telling Fox News that “there is a bipartisan consensus to have an individual mandate.”