Commentary: Health care view depends on where you sit

The (Tacoma) News TribuneJuly 9, 2012 

How you reacted to the pretty darned historic U.S. Supreme Court ruling on the Affordable Care Act might depend upon the lens you look through.

Is it a primarily a constitutional issue, a political issue or a public policy issue?

Through the constitutional lens, you see terms like the Commerce Clause and federal power (and even broccoli). Until Thursday, most everyone thought the court’s ruling would hover around the power of Congress to regulate interstate commerce and whether it provided enough cover for the new law – especially the requirement that all Americans buy insurance or face financial penalties.

But some pretty smart observers, so smart they were mostly ignored, have said the case could be decided on narrower grounds. If the financial sanctions against people who refuse to buy health insurance could be seen as a tax, then the case could be decided without invoking the Commerce Clause.

And that’s what Chief Justice John Roberts did. One of the court’s more-conservative members joined with its four most-liberal to uphold the law as a taxing scheme. Good thing for President Barack Obama, since Roberts would have joined the other side if it remained a Commerce Clause case.

Some opponents howled at the terrible precedent this would set. But others, including Washington Attorney General Rob McKenna, saw it as a victory of sorts. McKenna was among the attorneys general who filed suit against the law. But he said the decision at least serves to limit the Commerce Clause powers of Congress.

The mention of McKenna makes for a good transition to the next lens – the political one. That was the filter through which the punditocracy watched the day’s events. Would the ruling help or hurt Obama and likely Republican nominee Mitt Romney?

Better to have a victory than a loss, is how most assessed the ruling’s effect on the president. But Nate Silver of fivethirtyeight.com thinks voter sentiment on the issue is already embedded in the polling so the actual ruling might not effect the election much at all.

If the law is unpopular – something not exactly clear from the polling – then might it boost Romney’s assertion that the only way to repeal it now is to elect him? Of course he still must explain that he used an similar mandate to build Massachusetts’ health reform law when he was governor.

In Washington state the question was, would the ruling make it more difficult for McKenna to become the first Republican elected governor in Washington since 1980?

Democrats have already gone after him for joining the lawsuit against the measure. Democrat Jay Inslee is certain to continue to press on an issue that will remain awkward for McKenna. After the ruling was released, Inslee talked – as he has for most of the campaign – about the law’s benefits.

McKenna spent Thursday trying to finesse the result – that he’s glad the suit forced “a thoughtful debate” of the constitutional issues but that he disagrees with Romney and other Republicans that the law should be repealed. He even said the individual mandate should stay in place “for now.”

I’m going out on a limb but I’m guessing that those who view this as a constitutional or political issue – as fodder for thoughtful debates – probably have health insurance.

Those who don’t, those who fear they might not, likely view it as vitally important policy issue. They might have wanted to ask the politicians who opposed the law to explain why the popular provisions were taken away had the court gone the other way.

Now, those politicians are free to say they support benefits like allowing young adults to remain on their parents’ insurance, assuring that pre-existing conditions don’t disqualify children now and adults in two years, preventing the sickest from paying higher rates, giving access to Medicaid, and providing subsidies for private insurance purchases to the uninsured.

And they’re just as free to keep opposing the means to pay for it.

See, where you stand on the court’s ruling might be dependent upon where you sit – in the constitutional law classroom, in the campaign war room or in the clinic waiting room.

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