June 25, 2015


Pragmatic Conservatism At The Heart of Chief Justice's Ruling To Uphold ACA Subsidies (John Osborn, 6/25/15, FORBES)

To the dismay of political conservatives, Chief Justice John Roberts has now rescued President Obama's Affordable Care Act (ACA) not once, but twice, from provocative legal challenges. Recall that in June 2012, the Court ruled that the penalties to be meted out under the law for failing to have health insurance were really just a tax by another name, and were constitutionally permissable. Three years later, the Chief and five colleagues now find that context trumps a literal reading of the words. Ironically, while this long running spectacle has proved once again (if we really needed further evidence) that it is fairly easy to find fault with the legislative "craftmanship" of massive omnibus laws produced by this or any other Congress, the larger lesson for me is that the Chief is deeply respectful of the political process and is at heart a philosophical conservative in the classic sense of the term. We are better for it. [...]

As a lifelong Republican I must point out that the Republicans have had their chances to put forth alternatives to the ACA, and they have failed to do so -- at least not in any constructive, meaningful way. Mitt Romney had a chance to clarify exactly why his Massachusetts plan differed from the ACA and what he would do, if elected President, to modify and improve the ACA; I don't recall any such speech or policy memorandum making the rounds. Let's remember that there are millions of Americans who now have health insurance coverage who did not have it five years ago, including those with pre-existing health problems and children. Let's remember that insurance markets work best when risk is spread across a broad continuum of the insured population. Let's hope that the Accountable Care Organization concept and the cost control measures will reduce the aggregate cost of healthcare in America over time; I am still skeptical about this. But I have no apetite to play a metaphorical Monopoly game and begin again.

Our Constitution limits the bounds under which each branch of government may act, and if the Congress truly had exceeded its constitutional authority, or infringed upon the prerogative of the states in establishing the ACA framework, I have no doubt that the Court would have struck down all or key parts of the legislation. But after more than five years of reform and implementation, do we really want to start over with a new and slightly different model of health insurance reform just because the Congress was imprecise in its use of a single phrase in a sea over 900 pages of statutory language?

Now sit down with the president and write some real reforms.

Posted by at June 25, 2015 1:03 PM

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