The triumph of substance

No one can escape the latest news to emerge: in a landmark decision that will likely go down in history, the Supreme Court Of The United States (SCOTUS) has voted, 5-4, in favour of President Obama’s Affordable Care Act (ACA), the bill of all bills during his presidency that was providing a much needed overhaul of the health care system. Stubbornly dubbed “Obamacare” by its detractors who still believe health care is not a right, but should be tied to quality and stable employment, the Affordable Care Act is however aligning the United States with other western countries that have long implemented a system of individual mandate. Set to kick in in 2014, the ACA is a historical victory for the left, that now depicts President Obama as the president of effective and long-lasting change, like he had promised. Wiping away the defeats of federally enshrined gay marriage and a startling defeat in Afghanistan, the constitutional victory of the ACA is a renewed hope domestically, that will ensure health care coverage for more than 30 million Americans who are currently living without any sort of insurance. Here is a breakdown of what the bill effectively means, and what makes the decision so unexpected and, in definitive, such a victory for the Democrats.

1. Coverage for over 30 million Americans Until then, health care benefits were tied to the insurance chosen by your employer, if you had any. Most of them did not cover dental or vision, or would be cheap depending on how considerate your employer was. Under the new individual mandate, every American will have the opportunity to choose a health insurance, and up until 2022, the poorest of the population will receive governmental subsidies to help them purchase the coverage. Medicare will also be extended over the federal poverty line up to 138% in order to start bridging the gaping, well, gap between the richest and the poorest in terms of health coverage. This is as close as the United States are going to address the financial inequalities all over the country, as health care is one of the criterias addressed when defining poverty.

2. Prohibits the concept of pre-existing conditions Pre-existing conditions were defined as “a health problem that existed before you apply for a health insurance policy or enroll in a new health plan.” This could mean everything ranging from your child’s newly diagnosed asthma to your recently developing cancer, if you were uninsured. Another completely irrational and unfair rule of the pre-existing condition: pregnancy was listed as being a pre-existing condition if the woman was uninsured or wished to change insurers when pregnant. Under the ACA, turning down a potential client and/or screening for pre-existing conditions is now illegal.

3. Suppresses the gender inequalities According to this very helpful graph, the cost of health insurance for women varied vastly from state to state, and insurers seemed to be under the somewhat sexist belief that women cost more in health care than men. There was a theory that cancer screening and preventive care – namely contraception – made women a greater liability for health care and therefore deserved to be charged more. Under the ACA, the cost of health care for women is not only levelled throughout the whole country, but it is also now illegal to charge a woman more than a man for the same coverage.

For purely anecdotal reasons, and to get a little laugh at this 193 pages long SCOTUS document before we dive into legal conversation, is this article on Jezebel highlighting that the Men’s Rights group on Reddit is upset at the language used in the bill. They explain, “For example, said several guys who need hugs, the ACA covers well woman visits but not well men visits, that it covers STI testing and treatment for women but not for men, it covers contraception for women, but it doesn’t mandate coverage for men, etc. The act mandates tubal ligations be covered by insurance, but not that vasectomy be covered.” Which is clearly not true. The language of the ACA is not gender divisive and STD prevention covers both men and women, and even if the argument that women’s reproductive health is expensive because of that child birth business, this is, as they say, “tough shit”. There is nothing anyone, not even President Obama, can do about the reproductive organs of men and women in the ACA. The key word here being “prevention”, which includes the responsibilities of both sexes.

What is interesting about this bill, though, is Judge Roberts’ vote. A noted conservative, he however voted in favour of the individual mandate, sending fellow conservatives such as Judge Scalia in a frenzy in their dissent. Over at, Jessica Pieklo explains:

The heart of the Chief Justice’s opinion sets forth a simple truth that the Democrats should have seized on a year ago: the Affordable Care Act forces no one to do anything. Instead it simply increases the tax liability of those who chose to opt out of the insurance structure. That doesn’t make the mandate a tax per se, just an appropriate use of Congress’ taxing power. Only the most radical of the right wing believes essentially all taxing power is unconstitutional so, when you boil it down, Roberts’ decision and its holding as to the taxing issue falls not so much with the “liberal” wing of the Court as it does with the vast majority of legal scholars.

Would this particular Supreme Court not be as “judicially activist” as most conservative have deemed it to be? Is there such a thing as the Law being over and beyond the concept of partisan politics? The language of the bill – the mandate being called a “tax” instead of the mandate – was clearly chosen in the dissent to excite the fear of the Right and make Republican soon-to-be presidential nominee Mitt Romney to declare that the Affordable Care Act was “the biggest tax hike ever”. It’s not. It just explains that, should someone decide not to buy into the new health care system, their tax liability is increased. It is a system made to ensure the vast majority of Americans will be covered, and those who will not be covered will pay for their lack of solidarity with their fellow citizens (and the contamination of their workplace next time they’re getting sick). Judge Roberts, now on the cover of Time Magazine, has done the seemingly impossible deed of behaving like a legal scholar instead of a little neo-conservative robot placed in the Supreme Court solely to satisfy the endless greed of John Boehner and the likes of him.

Here is why this is a triumph of substance. In Massachussetts, where a former governor successfully implemented a similar individual mandate at state level in 2006 – you might have heard his name: Mitt Romney – plenty of legal scholars have had the opportunity to observe the benefits of such a law on the population. It was with glee and cheers that Harvard Law professors greeted the news of the Supreme Court ruling, in their sense, a logical ending to an extremely partisan and unnecessary effort from the right to derail President Obama’s willingness to change. Says Professor Einer Elhauge,

The Supreme Court decision upholding Obamacare as a tax is a triumph of substance over formalism. A major flaw in the challengers’ position all along was that, even if you bought their argument, Congress could impose precisely a mandate with precisely the same financial effects if it called the mandate a tax. It could also impose a broccoli mandate if it called it a broccoli tax. The challenger argument hinged on the claim that this functional identity did not matter because it was called a mandate rather than a tax. The Court held – I think quite sensibly – that the issue turned on substance rather than linguistics.”

Chief Justice John Roberts, himself appointed by George W. Bush, consistently repeated he believed in “judicial restraint” – which is to say, respecting the Court’s neutrality and rejecting activism, this activism so feared and waved like a giant red flag when President Obama named Elena Kagan. Harvard Law’s team – and most constitutional scholars –  is however unanimous in saying that Judge Roberts’ vote did nothing less than restoring respect and neutrality to a Supreme Court that was supposedly too aligned with the current lobbies and political stories of the time, instead of holding the Constitution firmly into their appointed hands and playing their role of the nation’s guardians. Roberts compared SCOTUS to an “umpire”, simply calling balls and strikes, never caring about which team wins or loses. However, as Professor Laurence Tribe so clearly points out, constitutional law is never that black and white. It is never about who wins or loses in a simple decision. Taking the Affordable Care Act to the Supreme Court was an act of extreme partisanship, a declaration of war against the Obama administration and its desire to bridge gender and financial inequalities in a country ridden with income gaps and plagued with financial deregulation. In the depth of the financial crisis, President Obama chose to address the concerns of the everyday man and that of his family: to be covered no matter what happens in the course of one’s life. Taking this decision to Court meant taking a step forward in rejecting the current administration and upholding the values of the previous one, the individualism so dear to conservatives under George W. Bush’s 8 year reign. But Judge Roberts followed his own analogy: he did not vote according to party lines, he voted according to what the Law said, and the Law was in accordance with the individual mandate.

Nevermind Senator Rand Paul, who himself famously said, “Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so.” Yes, it does. This is how the judicial branch of government has been laid out in the Constitution. But nevermind that soundbite.