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Commerce Clause on the Chopping Block

Why the ObamaCare Ruling was a Victory for the Corporate Right

by FRANK SMECKER

The recent SCOTUS ruling on the ACA (Affordable Care Act) resulted in a quid pro quo between the nation’s public and private sectors: the private health insurance companies and pharmaceutical companies are to receive billions of dollars in a federal handout in exchange for regulations. This ruling, depicted as a favorable win for the democratic left, upset America’s right. Though this shouldn’t go without saying that there is no shortage of leftists and progressives who are nonetheless chary about this act.

A good deal of folks see it as a threat that may end up raising taxes on some of the nation’s poorest people: those currently without health insurance, unemployed, partially employed, etc. The only thing to assuage such a fear is good faith that the ACA will result over time in lowered health care costs. Others see this law as equivalent to the bailout of Wall Street, giving Big Pharma and HIC (health insurance companies) billions of dollars in subsidies, a law that forecloses any serious mainstream discussion on, and action towards, the very possibility of either a public option or universalized Medicare. Some maintain the middle ground, seeing the law as a lesser of two evils sort of thing, a “step in the right direction”; the unfounded hope that, over time, trending profits in the insurance industry will wane until we are left with a strange though unique hybrid of corporatism and compassion. And of course we can all agree that it is a good day for those who have pre-existing conditions—no longer can insurance companies reject them. But is this all just not a cunning ploy on behalf of the corporate state, in the guise of today’s televised pop culture politics? That is to say, appearances may not be what they first seem.

The essential enigma at play here is this: the problem does not lie with the ACA; it lies with the Supreme Court decision. The ACA was not found permissible under the Commerce Clause, though it was upheld anyway, under another theory. The SCOTUS established a precedent that the clause is more limited than it has been since the New Deal era. Does anyone really think Roberts grew a conscience? This is pure activism on his behalf: the act is upheld and—we barely notice it, hardly object—but the law was just fundamentally changed under our noses. Why is this a big deal? All post-New Deal social and environmental regulation happens under the Commerce Clause. That is to say, the groundwork to repeal decades of legislative progress because it may be seen as undue, as “excessive regulation,” was just laid. And it was laid with silence and stealth.

The original understanding of the Commerce Clause before the New Deal era (known as the Lochner era) held that Congress didn’t have the power to do things like prevent discrimination, provide healthcare, regulate business, so on and so forth. In the post-New Deal era in which we’ve been living, it’s been commonly accepted that the federal government has these powers. Until now.

The recent Supreme Court ruling on the ACA is a sort of Holy Grail for the corporate state. It’s not a minor fact that there used to be much more limited understanding of the Commerce Clause. But that era had to end to usher in a relatively humane world. And we’re heading backwards into the future, for real. By gutting this clause, we are jolted back into pre 1930: the Gilded Age for America’s Right and laissez faire capitalism. Comte saw this coming: he was confident that modern development would culminate in a technocratic hierarchy. And Spencer insisted that laissez-faire capitalism and industry were essentially one and the same. As a friend of mine who practices law in the San Francisco bay area put it, the implications of the SCOTUS ruling are grave: the repeal of all major federal legislation that has shaped our world since 1930: the voting rights act, social security, Medicare, title IX, the violence against women act, the clean air act, all financial industry legislation, all environmental legislation, all anti-discrimination legislation. Almost all legislation happens under the Commerce Clause.

That there is no substantial difference between Obama’s plan and Romney’s Massachusetts plan, that the origins of this act are rooted in the right-wing Heritage Foundation, that this law openly sanctions collusion between government and private industry while gutting the Commerce Clause, thereby threatening to strip US historical achievements that have been won in the name of human decency over the last nearly one-hundred years—that there is essentially no substantial difference between Obama himself and Romney, that the two are, as author and writer for Truthdig Chris Hedges puts it, “servants to the corporate state”—refers directly to the tendency of capitalism’s “free markets” to disregard imperative prohibitions, to flout limits, to scoff at regulations, all the while forcing prohibitions and limits upon the people, restricting our humanity to articulations of avarice and competition.

What just happened with the ACA is a Trojan Horse of sorts, another moment of the ongoing corporate coup taking over all branches of government and civic society. Marx claimed that, as long as industrial society didn’t “relapse into barbarism” it would end in communism. Well here it is: a corporate communism for the rich. Francis Fukuyama wrote in The End of History and the Last Man:

“much of the Right believed that a “failed society” like the Soviet Union had nonetheless found the key to power through the invention of Leninist totalitarianism, by which a small band of “bureaucrat-dictators” could bring to bear the power of modern organization and technology and rule over large populations more or less indefinitely.”

That a law that originated in a right-wing think-tank has been passed off as a leftist victory brings to mind what leftist Senior Director and Co-Director of the Centre for Ideology Critique and Zizek Studies at Cardiff University, UK, Fabio Vighi, has to say about contemporary politics: “any alliance between the left and global capital ends up favoring the populist right.”

It’s becoming more recognizable that, here in the States, “democracy” and “freedom” are merely fetishistic references that “abound in the mouths of our politicians” which serve to prevent any alternative political discourse. We should, as Vighi calls for, confront what we love to disavow: “the fact that even when democratic legitimacy seems healthy, our votes merely sanction the existence of an order whose framework has already been decided and imposed on us.” The liberal democracy we have come to familiarize ourselves with only allows us to choose those things that do not interfere with the interests of capital.

In a sort of Hegelian cunning-of-reason way, the universal of capital has further articulated its ideological authority, using political particulars (in this case, the ostensible right vs. left clash over “Obama’s”—read, Romney’s; read, Heritage Foundation’s; read, the corporate state’s—health care act) as a means by which to do so. If our elected officials no longer serve to monitor the Establishment for us, if they no longer care to protect our basic civil rights and environmental legislation, then they clearly do not represent the concerns and opinions of the populace. We need a new left that is ready to engage directly with the people again; we need a new left that will not get so narcissistically wrapped up in their own party politics; we need a new left that differs greatly from today’s mainstream left, the latter clearly pandering to a politics which has, unquestionably, been transformed into another “consumer good.”

Frank Smecker is a veteran of the underground hardcore and indie-rock music scene, and a philosophy student at UVM. He is working on his first book about ideology.