By Jay Hansen
The Supreme Court just ruled Friday on the nature of the Affordable Care Act, specifically the constitutionality of the mandate. We won’t know the ruling until summer, but given the statements and general reception of the Supreme Court towards the bill, things are not looking good for Obama’s signature legislation and biggest accomplishment of his first term in office. So the question we’re left with is who is to blame for this debacle?
The obvious answer is a corrupt Supreme Court. We focus so much on the corruption of Congress, and even of the Presidency and its administration that we sometimes forget about the depth of the corruption in the Supreme Court. Keep in mind, this is just about the exact same Supreme Court that delivered us the infamous Citizens United court ruling that established corporations are people, money is free speech, and therefore, corporations and special interest groups can spend unlimited amounts of money campaigning for any candidate they like.
It all started back in 1886 in the Supreme Court case Santa Clara County v. Southern Pacific Railroad (the railroad companies of the 19th century being on-par to the oil companies of today in terms of strength, scope, and wealth). This was the first case that, by way of the fourteenth amendment, corporations were granted (albeit limited levels of) personhood. The problem is, it was not a Justice that delegated this right to corporations; it was a clerk that wrote as much in the header of the ruling two years after the ruling was made. Naturally, the clerk in question was the former President of Southern Pacific Railroad. Corruption of government is hardly a new thing, and apparently even the means by which it is corrupted hasn’t changed after all of these years; make the businessmen working in the industry the lawmakers and regulators that are supposed to keep business in check. The more things change, the more they stay the same.
It wasn’t until 1971 that a corporate lawyer named Lewis Powell wrote a letter to the Chamber of Commerce explaining how of all three branches of government, the only one corporations and the wealthy hadn’t yet corrupted enough and brought under the sway of their influence was the judicial branch, particularly the Supreme Court. Obviously, the man was deeply corrupt, and so unethical he was unfit for public office. Naturally then, he was made a Justice of the Supreme Court one month later. Who appointed him? Well, who else but the Godfather of government corruption, President Richard Nixon. Five years later in 1976, Powell swung the Court to rule that spending money equated free speech, and two years after that ruled in the case First National Bank of Boston v. Bellotti that corporations had the same free speech rights as individual US citizens. From there, slowly but surely, money easily began to influence politics more and more, making whichever party sold out to and did the bidding of corporations and the wealthy significantly more powerful. This was the Republican Party, who then would promise their wealthy donors to appoint more Powell-like Justices to the Supreme Court, which they have done, creating a bench with five conservatives that always do the bidding of business, and four “liberals” who only do the bidding of business sometimes.
This has made even the Supreme Court, the branch of government that is only supposed to interpret the law and use sound logical arguments to make policy, a partisan, corrupt body. Right now, all the hopes of the Affordable Care Act are in the hands of the “swing” vote, Justice Anthony Kennedy, who just happens to be the least conservative of the five mentioned above, but things look grim. Kennedy came out this week and said that the mandate is a “step beyond what our cases allow,” and went on to state his belief that making the case for the federal government’s authority to impose a mandate on Americans to buy health insurance is “a heavy burden of justification to show.” Already, the mandate’s hopes are not boding well from this reading of Kennedy’s words, but what about the rest of the law? Well, things don’t look good there either, because Justice Scalia literally laughed at the notion that the Court should have to read the entire bill before ruling whether or not the entire bill, not just the mandate, is constitutional or not. The conservative Justices plan on using the mandate as an excuse to rule the entire law as unconstitutional on the grounds that it is inseparable, and that the rest of the bill would be impossible to enforce or is otherwise dependent upon the mandate, when nothing could be farther from the truth. The Justices scoff at the notion that they may actually have to determine what parts of the law would or would not be possible to keep if the mandate is done away with, so they quite lazily just decide to rule the entire legislation unconstitutional. Laze, on the other hand, may not be the right word; it’s much more apt to say they’re eager to do as their constituents, the Republican Party and big business, tell them to do. That’s why they’re licking their chops at the idea of defeating all of the Affordable Care Act in one swoop, when clearly a vast majority of the law is constitutional and separable from the mandate.
We now arrive at two huge ironic twists in this case. The first is that the insurance industry, the businesses this bill is regarding, is in favor of the mandate. This is also why those people who claim “Obamacare” is a “government takeover” of health care are full of it, because the mandate literally requires nearly all Americans to become customers of private insurance. Given that, it’s more correct to say that the Affordable Care Act is a private industry take over of health care. This is why insurance companies actually love the mandate; it delivers them untold amounts of new business guaranteed by the federal government. Not only is this ironic given the laughable criticism of the bill as “socialist,” but also because it creates a conflict for the Supreme Court Justices. They are sell-outs to business, implying that they would be more inclined to do what private insurance wants, which is keep the mandate. The problem is, though, especially with the outlook for the mandate not looking good, it would appear that the Justices are actually taking party loyalty over that of their wealthy business friends. Keep in mind, judges aren’t supposed to belong to political parties. At least, they’re not supposed to have any party loyalty. In the past, when a judge has ruled in favor of business, you could say they were “business friendly” or bought-out by business indirectly (likely because they have worked for a large industry in the past, and went to the Court to represent that businesses’ interests, much like the former President of the Southern Pacific Railroad who got a job as a clerk in the Supreme Court and altered history). Now though, there is strong, obvious evidence that judges are not just unfairly representing business interest, but are actually holding party loyalty above even that. To add irony on top of irony, though, this means that our only real hope for the mandate to not be overturned is the exact same corrupt system that broke the courts, as well as the rest of the government, to begin with, because our only hope is that private insurance companies had enough influence over the Justices to convince them not to overturn it despite political pressure from “their” party.
The second and most important ironic twist in this debate is that the Republican Party, which now demands the mandate be eliminated, is the party that created the mandate in the first place. Everywhere you go in the media, people talk about “Obama’s mandate,” or something to that effect, when in reality, nothing could be further from the truth. This also makes the health care mandate very possibly the largest-scale flip-flop in the history of American politics, given how Republicans so vehemently and aggressively oppose the mandate now despite the fact that they were the ones who first created and proposed it (not to mention it’s an amazing testament to how dangerously far to the right the political spectrum has been shifted). They’ve done such a good job with this flip-flop, as a matter of fact, the media hasn’t even realized it, or at the least hasn’t bothered to call them out on it. Sadly, my money is on the latter of those two possibilities.
Let’s take a look at some history. The individual mandate was first written by the Heritage Foundation, the most conservative think tank in the nation, and was eventually passed to Governor Romney of Massachusetts who then signed it into law in 2006. But even before that, as far back as 1993, Republicans have been supporting and pushing for the individual health care mandate. Some of the most conservative Republicans in the nation, such as Senator Hatch, Senator DeMint, former Senator Santorum, former Speaker of the House Newt Gingrich, perhaps most famously former Massachusetts Governor Mitt Romney (see any similarity among the last three politicians?), and countless other Republicans. President Obama adopted the mandate out of his desire to appear centrist, and to appease, compromise with, and reach out to Republicans and the insurance industry. A Democratic President was wholeheartedly supporting a very Republican idea, so the entire party panicked. They couldn’t agree with Obama; not with all the horrible ways they’ve slandered him. This forced them to abandon the idea, despite the fact that the business community wanted it and it had been a staple in their party platform for over a decade. Apparently, Republicans knew all along that the mandate was a bad idea both politically and in policy, which is funny given their party’s obsession with lowering government interference in people’s lives. As usual, Republicans displayed a complete and utter lack of party principles, but never have they done so in such an obvious, damaging way.
That is, it would be damaging if the media actually did their damn job and called them out on it. When was the last time you heard someone in the media point out that the mandate was a compromise for Republicans? Or that it was put in the bill to make it more “business-friendly” as the Republicans so often like to say?
Now that we’ve looked at all parties involved, let’s answer the original question; who’s to blame for this? The Supreme Court has been corrupted for decades, so Obama should have known that going into this legislation. Granted, he may not have expected his bill to be brought before the Supreme Court, but he should have expected Republicans to attack it from every single angle possible, including on the parts of the bill they convinced (manipulated) the President into making weaker or unappealing. That was their goal all along; to water down and delay. They got rid of the public option that way, and they set PR traps all through the bill like the mandate. They just had to wait for the American people to bite at one of them the hardest, or to see which of their attacks and talking points resonated most with the American people. It just so happens it was the mandate, and they drove the propaganda home so well with American voters the issue has made it all the way to the Supreme Court. So inarguably, the people that caused the bill to come before the Supreme Court, which everyone knew was already corrupt in favor of the Republicans, were the Republicans criticizing it. But does that mean they are the ones to blame should the entire law be ruled unconstitutional, and fail?
Honestly, if you were shocked that the Republicans abandoned all principle and platform to attack a President of the opposing party, you don’t know squat about politics. This goes for President Obama and his advisors too; if they did not expect Republicans to attack them over the mandate, among many other flaws in the bill, then they were, to put it lightly, poor politicians that did not understand how American politics works at all. Obama should have seen this coming. I can say that with a fair degree of certainty, to say the least, because I saw it coming, and I’m fairly certain the President is more prolific on this issue than I am (at least, I thought he was). Here’s a quote from an old blog entry I made long before I ever made this site, just as the debate over the Affordable Care Act was wrapping up.
“First and foremost, you don’t have to be Admiral Ackbar to know, IT’S A TRAP, and Democrats are falling right into it… The Republicans delayed and delayed and delayed, watering the bill down each step of the way. Nearly all the problems I listed below are because of “compromises” with Republicans and conservatives. Now, it’s been so watered down, especially in terms of; cost containment, competition among health insurance industries, and most of all, regulation of the industries, that it will do more harm that good… Now though, the Republicans have what they wanted (even if not “exactly” as they wanted it). They wrecked the bill to the point where it was terrible so now they can stand against it, ultimately repeal it before 2014 (it’s not a question of if how, but when), allowing the Republicans to stand as the heroes of the American people by stopping this ineffective, watered-down bill.”
I wrote this blog over two years ago on March 22nd, 2010. Even then I knew this was a trap, a classic bait-and-switch for which Obama fell so easily. The Republicans reached out a hand of compromise, Obama took it, and with the other hand the Republicans stabbed him in the back. You just can’t so easily trust a Republican, if ever, and Obama really needs to learn that. It’s been the key flaw and criticism I have for his administration; he gives up too much in the name of bipartisanship and compromise. After multiple disastrous budget battles, the Republicans breaking all records in filibusters and obstruction for Obama’s legislation and appointments, and some Republican officials directly telling the President and American people that they will stop at nothing to sabotage everything this President does despite the damage such political warfare will do to America, it’s just sad that Obama continues to reach out to Republicans rather than kick their ass (figuratively, of course). Now, just as I predicted years ago, Republicans have their means through which to undo the Affordable Care Act without even having to use the Congress by way of the Supreme Court. This is at least in part, if not primarily, because of Obama’s naivety, if not flat out ignorance in the face of Republicans who openly say they will stop at nothing to impede everything the President does, when it comes to negotiations and politics. I would really hate for it to happen like this, but Obama must learn the moral of the story, and learn to never so openly trust or go out of his way to appease Republicans ever again, because they will never do the same.