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The Constitution and Social Progress

History Judges Health Care

by DANIEL LAZARE

The healthcare programme that President Barack Obama manoeuvred through Congress in 2010 is a political compromise that may not much reduce medical costs or alleviate a worsening health crisis. It still provoked angry backlash as Tea Party members accused the president of establishing “death panels” to decide who should live and die among the sick and old, and Republican presidential candidates vowed to kill the programme the moment they took office.

Obamacare has to go before a conservative-dominated Supreme Court for constitutional review. A decision is not expected until late June. But hostile comments during three days of hearings in March made liberals fear that Chief Justice John Roberts would disallow the plan’s most controversial feature, a requirement that families pay annually for private health insurance or face a substantial penalty to the federal government.

Instead of a clear and simple single-payer system, the senators opted for a scheme that was complicated, introduced through the Patient Protection and Affordable Care Act of 30 March 2010. It calls on each state to set up separate “health insurance exchanges” in which private insurance companies would advertise and compete for business, rewarding those companies with 32 million extra customers, many federally subsidised. Unless covered by public programmes such as Medicare or Medicaid or by their employers, a family of four will have to spend up to $8,400 a year for medical insurance or pay a penalty of more than $2,000.

Obama’s health plan leaves 23 million people uninsured, most of them undocumented immigrants, and gives conservative-dominated state governments wide leeway to restrict coverage (women would have to purchase separate coverage for abortions). Insurance companies will benefit from $447bn in taxpayer subsidies, yet will still be free to raise prices. Don McCanne, senior health policy fellow at Physicians for a National Health Program (PNHP), sums it up as “unaffordable under-insurance” (1). Still, Obamacare provides cover to 32 million people who could not otherwise afford it and forbids denying insurance to those with pre-existing conditions (illnesses expensive and unprofitable to treat), although there are loopholes.

If the Supreme Court decides to challenge the plan head on, the consequences will be serious. Congressional Democrats will be paralysed for fear of rightwing judges on the warpath. “If the Supreme Court can get away with striking down core economic legislation, the left is screwed for a generation,” says Nathan Newman, a lawyer, journalist and former union organiser. “Between GOP filibusters and a Supreme Court willing to strike down anything that gets through Congress, striking down Obamacare will be a signal for corporate America to run riot and expect no significant regulation to restrain it.” The incompatibility between the constitution and social progress will depress American political life.

American exceptionalism

To understand this, it is necessary to understand the US’s strange political system. American exceptionalism has been much mentioned during the current presidential campaign. (The term was coined by Communist Party members in the 1920s who argued that the US was so economically powerful as to be exempt from the laws of capitalism. Not exempt from the 1929 crash, however.) It has been appropriated by Republicans to describe a society incapable of doing wrong because it has been blessed by God. The US is exceptional in one, non-divine, respect: while other western democracies have repeatedly revamped their governing systems after war and revolution, the US has had the same plan of government since 1787.

This is a source of immense pride for Americans, yet the results are calamitous. The government that the constitution decreed is corrupt, frozen and racist. The House of Representatives is not undemocratic, but the Senate is the most lopsided major legislative body on earth, with the possible exception of Britain’s House of Lords (which is largely ceremonial). Organised on the basis of equal state representation, it grants the same number of votes to Wyoming as it does to California even though California’s population is 68 times greater. Since Senate rules require a majority of 60% for any measure to pass, just 41 senators, representing perhaps 12-13% of the total population, can veto any measure introduced by either house.

When voters complain, senators and representatives say there is nothing they can do because a do-nothing Congress is what the founding fathers (the small group of lawyers, merchants and slave-owners who created the constitution) wanted. “Listen, the founders gave us a committee of 535 people,” John Boehner from southern Ohio, who commands the House’s Republican majority, said last November. “Frankly, it was designed not to work. My job is to make it work. And it is working. Is it slow? Yes. Is it frustrating? Yes.” That month, Congress’s approval rating sank to 9%, which, as a Democrat pointed out, was six points less than the approval rating for reality star Paris Hilton (2).

The healthcare plan reflects this deliberate dysfunctionality. It was designed not by the White House but by six senators — three Democrats and three Republicans — some from Montana, North Dakota and Wyoming, vast western expanses where there are more cows than people. If the Supreme Court’s five Republican judges (against four Democrats) decide to overrule it, it will be because it exceeds the dispositions defined in section 8 of article 1, which gives Congress the prerogative “to regulate commerce with foreign Nations, and among the several States”.

In 1787, the aim of this clause seemed clear. To forge the young North American federation, Congress needed powers to prevent the 13 member states from turning themselves into miniature commercial powers in conflict with each other. After the New Deal in the 1930s, this clause served to control all activity which could affect the national economy — in 1942 the Supreme Court gave Washington carte blanche to regulate milk sales in one state, because of their impact on milk commerce in neighbouring states. The Court also authorised the federal government to fix the amount of wheat that an Ohio farmer could grow for his own consumption, on the grounds that it could affect the cereal market in general. In 1964, the Court gave Washington the right to forbid discrimination in an Atlanta motel, on the grounds that it could welcome travellers from another state.

There is no question that the $2.5-trillion healthcare industry qualifies as interstate trade. But the issue before the Supreme Court is whether Washington can compel individuals to purchase insurance. While the federal government can regulate economic acts, can it regulate a non-act, a decision not to purchase coverage? What would the founding fathers have thought? Politics becomes an exercise to show that modern policy is consistent with principles laid down in 1787 — as if François Hollande’s government had to demonstrate that everything it did would meet with the approval of Louis XVI. Rather than a democracy, the US is a “mortocracy”, a government of, by and for the dead.

Obama has appointed two well-known liberals, Sonia Sotomayor in 2009 and Elena Kagan in 2010. But since both of them replaced liberals, the political effect has been nil. He has had to stand by as the Court has issued rightwing rulings. In June 2009, the Court ruled that prisoners had no right to DNA testing that might prove their innocence. In January 2010, it ordered the lifting of restrictions on corporate campaign contributions (3) — a decision that has allowed wealthy men such as Sheldon Adelson of Las Vegas to spend millions on behalf of his favourite rightwing candidate, Newt Gingrich. Most recently, it ruled that local police can strip-search citizens arrested for driving with a noisy muffler, failing to use a turn signal, riding a bicycle without an audible bell or walking a dog without a leash.

The last liberal president who tried to challenge the Supreme Court was Franklin D Roosevelt. In January 1937, Democrat congressmen cheered when, in a swipe at judges who had struck down New Deal measures, he declared that the problem was not the constitution but a conservative interpretation of it. “Rightly considered, [the constitution] can be used as an instrument of progress, and not as a device for prevention of action” (4). It was FDR at his most Machiavellian: knowing that the constitution was the issue, he had earlier discussed with his aides the possibility of a constitutional amendment giving Congress the power to override the Supreme Court. But since changing the constitution is virtually impossible, he chose instead to attack judicial conservatives by packing the court with liberal appointees.

FDR lost the battle but won the war when “the Supremes” (judges) soon began approving New Deal bills no different from those they had previously rejected. Democrats reversed course as well. Where they had once excoriated judicial review, they now pledged undying fealty to a Supreme Court that, from the 1950s, overturned school segregation, prohibited school prayer, legalised birth control and abortion, and struck down laws including those prohibiting pornography and homosexuality.

But with the Court moving further to the right, liberals are at a loss. If the court strikes down Obamacare, they will be where Roosevelt was in 1937. Obama, a former professor of constitutional law, has never uttered a word against Washington’s governing institutions. While he may disagree with the court’s interpretations, he regards judicial review, and the elevated place it occupies in the American political system, as beyond criticism. All he can do is pray the Court leaves some of his health plan intact.

Daniel Lazare is author of The Velvet Coup: the Constitution, the Supreme Court, and the Decline of American Democracy, Verso, London, 2001.

Notes.

(1) “Health reform devolves into ‘unaffordable under-insurance’”, 9 December 2011.

(2) Chris Cillizza, “Congress’ approval problem in one chart”, 15 November.

(3) See Robert McChesney and John Nichols, “US democracy sold out”, Le Monde diplomatique,English edition, September 2011.

(4) Jeff Shesol, Supreme Power: Franklin Roosevelt vs the Supreme Court, WW Norton, London/New York, 2010.

This article appears in the excellent Le Monde Diplomatique, whose English language edition can be found at mondediplo.com. This full text appears by agreement with Le Monde Diplomatique. CounterPunch features two or three articles from LMD every month.