© Jack Edward Urquhart June 29, 2012
The verdict is in: John Glover Roberts Jr. is a Chief Justice of uncommon skill. True, he rescued the Affordable Care Act by breaking away from his fellow Republican appointees. But consider these significant features of his deftly crafted opinion:
- The ACA survives—for the moment.
- The scope of congressional authority under the Commerce and the Necessary and Proper Clauses was dramatically limited.
- The ACA was formally branded “tax and spend” legislation.
- Congress was rebuked for “putting a gun to the head” of the States, unconstitutionally coercing them to accept Medicaid expansion or forfeit all participation Medicaid.
- Masterfully cloaked in a civics lesson on judicial restraint, the Chief Justice left the ‘‘wisdom” of the ACA to Congress, reminding all that, if they disagreed, they have the power to “throw out” the elected officials responsible for the ACA.
Had the Chief Justice joined Justice Kennedy’s opinion the entire ACA would be history. But what a mess this would have left.
Instead, the Court passed the buck to the Administration and the legislators who support the act, and tossed in significant obstacles to the ACA’s successful implementation. The artfulness of the Chief Justice’s opinion is not apparent on a quick read—it is masterfully subtle. This concluding paragraph, however, is a glimpse of a superficially simple, but profoundly important, Supreme Court opinion:
“The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”
He could have added, “Make sure you vote in November.” But he knew the message was delivered and will resonate in the public square.
Having praised the Chief Justice’s strategic genius, his legal analysis is curious and subject to well-deserved criticism. Candidly, his failure to acknowledge any of the ACA’s valuable provisions or the grave problems that the ACA attempts to address is a weakness. But he is the Chief Justice of the United States and the real “winner” in this historically important decision.
And so, where are we on health care reform?
Practically, the ACA remains in limbo. It is still the law. The immediate public reaction to the Supreme Court ruling confirms that country remains divided on an act that is clearly poorly understood by many. Reasoned dialogue on the ACA and health care in general is sparse at best.
So, as new ACA regulations continue to pour out, understanding them and complying with them remains a priority.
But perhaps we can learn a bit from the Chief Justice. Study the issues. Decide when to take a stand and when to adjust. Americans are pragmatic people for the most part. Be practical.
Chief Justice Roberts rescued the ACA—an act he surely disapproves, but it allowed him to change for our lifetime the balance of power between the National Government and the States.
As for the ACA, the rescue is temporary. It is doomed unless those supporting it can effectively communicate the need for it and persuade the public that it can work. Withstanding a constitutional challenge—just barely—is one thing. Selling it to a skeptical, confused, and frustrated public is another.
And for those who oppose the ACA, they must articulate concrete alternatives. Ignoring the millions of uninsured in this country who fill up emergency rooms and consume health care they can’t pay for is not acceptable. Insured individuals end up shouldering much of that cost in the form of increased premiums. The ACA has a plan for that. Insurance must be affordable—even for those with pre-existing conditions and complicated medical histories. The ACA has a plan for that. The quality and affordability of health care must be improved. The ACA has a plan for that. Controlling the percentage of insurance premium dollars spent on administration, rather than paying claims, is vital. The ACA has a plan for that.
Though polling informs us that the ACA is unpopular, the call to reject it would be more persuasive if coupled with an understandable alternative. The problems with health care are touching too many lives to simply ignore them for any length of time.
The need to address healthcare issues is not just one of human compassion. It is economic. The problems must be addressed as the $2.2 trillion spent each year on health care increases, and complaints about the quality of American health care swell.
The Supreme Court sent the problem back to Congress and expressly empowered the States and the American people. We’ll see how we do.
 Pub. L. No. 111-148, 124 Stat. 119 (2010, amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat.1029 (2010)
 National Federation of Independent Business v. Sebelius, ___U.S.___ (No.11-393 2012).