Seven Consequences of the Health Care Ruling

“I have had some bitter disappointments as president,” Harry S. Truman wrote in his memoirs, “but the one that has troubled me most, in a personal way, has been the failure to defeat the organized opposition to a national compulsory health insurance program.” He was just the first in a long line of presidents stymied by health reform. Now Barack Obama has succeeded where his predecessors failed. Or has he?

The Supreme Court’s blockbuster decision on Thursday has consequences that will reverberate for years. Here are seven big ones.

Passing health reform has always been hard, but now it’s gotten a lot harder. The United States does not have national health insurance for a not-so-simple reason: Congress. The people elect presidential candidates who promise the reform. Congress, through the years, has said, no thanks. It is so difficult because it takes 60 votes in the Senate and tight discipline in the House. By climbing so visibly into the fray, the court served notice that it would become an active part of the process. Yes, the Democrats won — this time. But the decision was close, technical and studded with new barriers to Congressional action on profound challenges that remain. More than 15 million Americans are still uninsured, even with the health reform; the cost of drugs, devices and procedures continues to spiral; worsening inequality has exacerbated enormous differences in health outcomes. Future health reforms will take 60 votes in the Senate and 5 on the bench.

The biggest winner is the Roberts court. The court was drifting into perilous territory. A polite fiction long justified the idea of nine unelected justices overruling Congress and the states: They merely interpret the law. That fiction had been slipping badly ever since Bush v. Gore in 2000. A recent New York Times survey found that three-quarters of the public believed that politics was a frequent factor in court decisions. Political scientists have lots of studies showing just that. Striking down the signal achievement of this administration on a straight party-line vote would have put the court deeper into dangerous territory, with liberals gradually signing up for the longstanding conservative effort to curb the Supreme Court’s powers — perhaps by limiting terms to 15 years, for example. With his exquisitely complicated ruling — siding with the liberals on taxing powers, not on the interstate commerce clause — the chief justice restored the idea that the court is wrestling with the complicated tangle of law — not punching in a partisan vote. In the process, he slipped the health care issue right back to where it belongs: before the voters.

The biggest losers are Medicaid and the poor. Very quietly, the Affordable Care Act introduced a revolutionary change: All poor people in America would get Medicaid. The new law would have extended Medicaid to everyone with incomes up to 133 percent of the federal poverty line ($23,050 a year for a family of four). Aren’t the poor already covered? That depends on where they live. In New York, most adults up to 150 percent of the poverty line are covered; in Texas, Medicaid reaches only to 26 percent of the poverty line — a family of four is not eligible if they earn, say, $9,000 a year. The court ruled that Congress may not require states to expand Medicaid. States can stick to their old Medicaid programs. Stingy states may choose to stay stingy. That part of the decision flew under the media radar. But it is a significant blow to liberals who had a simple way to grow benefits by expanding programs.

For the Obama administration, the hard job begins now. When Truman put national health insurance in play, he did something bizarre. He refused to argue for it. While opponents cried “socialism,” Truman remained mum. That silence became a not so proud Democratic legacy. As soon as Mr. Obama proposed the legislation, opponents began repeating “death panels,” “taxes” and “government takeover”; the Democrats responded by getting down into the policy weeds of their complicated law. The president’s statement on Thursday was a case in point. Down the checklist he went: policy details, moving story, pivot to the economy. When you say health reform, my summer neighbors in New Hampshire all nod their heads and say “death panels.” The question for Obama and the Democrats: What do you have that will match that? If they don’t come up with something stirring, the reform that survived the court could be lost in the election.

Big changes are ahead for health care. When the Clinton health reform went down to defeat in 1994, something curious happened. The health care system ran with many of the reforms that the Clintons had recommended. The managed-care revolution sprang from the failed reform. The Obama reform promises even greater changes: new incentives for hospitals to deliver more efficient care, new incentives to nudge physicians into primary care, and powerful new rules to stop insurance companies from cherry-picking the people they cover. The court gave the hospitals, doctors and insurance companies a green light to run with these changes. In many cases, they will. The medical system is going to change regardless of what Mitt Romney might do in his first week in office.

For the Republicans, “no” is not enough. Republicans have their campaign slogan: Repeal and replace! But history has a funny lesson for them. Every Republican administration in the past 60 years has proposed health care reform. There is no escaping it. What is the next Republican administration’s health care policy going to look like? There are plenty of popular provisions in the Affordable Care Act. The party of “hell, no” might be wise to think of ways to remake the law in its own image. Repeal may sound good now, but history is unambiguous. An administration without a health policy will soon be vulnerable to attacks. Cruel! Unfeeling! Out of touch! A quiet Republican conversation about what to cut, what to keep, and what to change will pay big dividends in the future.

But Democrats can’t rest easy. The Supreme Court weakened a major prop of classical liberalism: the interstate commerce clause. When Congress passed the blockbuster Civil Rights Act of 1964, it relied on its interstate commerce powers. Even an Alabama barbecue shack with a local clientele could not discriminate against blacks; after all, it served food that came from out of state. The Supreme Court this week backed way off from that expansive reading of the commerce clause. Mainstream Democrats looking to expand social welfare policies have gotten lazy: they’ve recycled Republican ideas — Bill Clinton borrowed from Richard M. Nixon the idea of building on employer-based private insurance to achieve national coverage, and Barack Obama borrowed from Republicans like Senator John Chafee of Rhode Island the idea of mandating individual coverage to broaden the private insurance pool. It’s high time for the Democrats to get more creative.

An earlier version of this article misstated the location of a barbecue
shack that was barred, by the Supreme Court, from discriminating against black customers following the passage of the Civil Rights Act of 1964. It was in Alabama, not Atlanta.

James A. Morone, a professor of political science at Brown, is the co-author of “The Heart of Power: Health and Politics in the Oval Office.”

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