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Will Judicial Activism Kill The ACA (and Untold Americans)?

Will Judicial Activism Kill The ACA (and Untold Americans)?

Consensus, aided and abetted by a ratings-driven, corporate media, says that a conservative majority that has perfected judicial activism on the Supreme Court of the United States has become just another cog in a larger right-wing wheel to make progressive economic and legislative victories a thing of the past. However, consensus seems that the Supreme Court will issue its ruling on President Obama’s, arguably, most significant achievement as early as tomorrow, June 25th and that Chief Justice John Roberts and his court will strike down The Affordable Care Act (ACA).

It’s bad enough that Republican Congresspersons swear an oath to little Grover Norquist with as much conviction as the oath they swear to defend the Constitution. Now, The Supreme Court is on the precipice of becoming a tool of wealthy conservatives as well.

Most Americans would probably agree that the economy is the biggest problem facing Americans right now. Despite several seemingly effective and doable plans available to our absentee leaders in Congress, absolutely nothing of substance has even been attempted by Congress. This is highlighted by a Congress has only worked 61 days through the last week in June for gosh sakes. With the economy mired in the worst downturn since the Great Depression, and liable to take a turn far worse if the news from Europe gets much gloomier, one would think that even Republicans would be concerned for the people that they are supposed to represent.

One would be wrong.

What’s To Come?

If the court does strike down the law, those in America concerned that criticisms of its ruling might undermine the “legitimacy” of the judiciary should allay their fears. These Conservative justices shattered the court’s standing as a nonpartisan, non-ideological actor in our governing system long ago. That’s why recent surveys have found its approval rating on the decline. In an election that, according to most polls, is still extremely close, with a growing number of sizable states apparently on a razor-edge, much will depend on whose fired-up supporters will flock to the polls and whose will stay at home sulking. If the Roberts court gives the health-care reforms a coup de grâce, the Republicans would be galvanized; after all, the Republican governors or attorneys-general of 26 states have brought this lawsuit, and nothing unites the GOP based in hatred as it’s become, as much as its lies and propaganda based on “Romneycare”, I’m sorry, I mean Obamacare.

The ACA is the victim of a vicious cycle: Obamacare doesn’t poll well. Therefore, Democrats avoid Obamacare, while conservatives attack it regularly. This makes Obamacare’s poll ratings even worse, which only reinforces the avoidance on the liberal side. Ironicly, this is the same vicious cycle that austerity promotes when implemented at the wrong time (see: Austerity vs the One Penny Solution).

The Democrats, never ones known for their “Braveheart” mentality, would see their spirits deeply shaken. Obama can claim, quite fairly, that his actions have done a lot to make the recession less severe it would have been. But these types of achievements are hard to quantify with unemployment likely to be the same in November as when he took office.

Bailing out the car industry was no small mark of leadership and business acumen. Also, ending the practice of dismissing open homosexuals from the armed clearly qualifies as a domestic success. Unfortunately, a relatively small number of voters were directly effected by either.

No, the “big kahuna”, health-care reform, as Vice- Joe Biden remarked when Obama signed it, is a “big f***ing deal”, especially given the partisan gridlock since 2010.

And yet, it is entirely possible that the Supreme Court, by throwing a judicial activists wrench into the works, could actually help the President as much as hurt him.

How the Supreme Court Could Do the Democrats a Favor

If the ACA is struck down, the Republicans would suddenly find that they have a mess of their own making to sort out. Many popular aspects of that have already begun would fall with it:

Allowing parents to keep their children on their insurance policies until they are 26
The elimination of lifetime ceilings on what the sick can claim
A ban on insurance companies refusing to insure the unwell is due to start in 2014
Generous subsidies will help not just those without insurance, but also some of those who have it and find it hard to afford.
Cost-control mechanisms, such as forcing insurance company to pay partial rebates to customers whose actual premium payments exceed medical expenditures, (health insurance companies owe customers in excess of$1 billion to customers as of today which they will be able to keep should the ACA be defeated by the Supreme Court)
Even if just the “mandate” requiring everyone to buy health insurance is struck down as unconstitutional, the cost of eliminating that provision would likely cause other parts of the bill to unravel. United Healthcare, the country’s largest health insurance company, has already said it would retain some of the popular provisions intact but it is doubtful that they will be able to.

Republicans have said that they want to “repeal and replace” the ACA, but they have been typically fuzzy about what that replacement would look like, but you can bet it would favor big insurance over individual Americans. If you break it, as Colin Powell remarked in another context, you own it.

So the danger to the Republicans of a backlash should not be ignored, but if true to form, the Republican Party simply will not care.

The Other Shoe

Another aspect to the political wrangling over the ACA should also be noted. If the ACA is struck down or fatally crippled, the Roberts court will be seen historically as politically slanted. Arguably that has happened already, thanks to its rescission of gun control in Washington, DC and Chicago in 2008 and 2010, and its decision in 2010 to scrap limits on corporate (and trade-union) donations to political-action groups. Granted, that is scant consolation to the millions of adversely-affected citizens. Judgments on other highly political cases, on positive discrimination and on immigration, are expected before the election as well. But just as the gun-control and campaign-finance rulings, these are likely to be “partisan” 5-4 decisions. A poll on June 7th found that 76% of Americans think that Supreme Court justices are sometimes swayed by their political or personal views, and that only 44% approve of the Roberts’ court’s performance. It used to be by far the most popular branch of government.

Frightening Power

Therein lies a possible silver lining for President Obama. If Willard Mitt Romney were to win the presidency, Republicans would control the White House, the House of Representatives, most probably the Senate (the same swings that would elect Willard Mitt Romney would likely turn over the Senate as well), and, in the eyes of a great many Americans, the Supreme Court.

That kind of concentration of power is, to say the least, disconcerting to most Americans. And it would come after a ruling that would be the most serious affront to an elected Congress by the court since the 1930s. Ruth Bader Ginsburg, a liberal justice, turns 80 next year, and three more of the nine justices are in their 70s. A win by Romney could quite possibly guarantee a conservative court for decades to come. The thought of such a possibility might get Democrats to the polls.

If the possibility above isn’t enough to scare the beejeezus out of anyone an inch to the left of Rush Limbaugh, and to get them to the voting booth, then the U.S. deserves just what it gets.

Source: HgTransEcon


 

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