The court, health care and a call for statesmanship
Perhaps the nation's most sweeping single legislative issue of the past half-century finally has had its day in court. Now, we wait.
Nine Supreme Court justices will, in a matter of months, determine whether the work of thousands of hours of wrangling will stand. The court's power may sound more than a little ominous and it is surely imposing; but it's also appropriate. The activities of last week were a grand object lesson in the balance of power established by the U.S. Constitution.
Just as the president could not unilaterally impose his will in the creation of the Affordable Care Act, so the Congress cannot impose its edicts unchecked. How critical, then, that the justices contemplate the arguments they've heard in the context of constitutional freedoms and not of political whim.
Throughout the course of the closely watched arguments, much was made of the “liberal” and “conservative” camps on the court, and, speaking of imposing, the singular influence that “swing vote” Justice Anthony Kennedy may represent. Yet as a balance to competing ideologies, it is also crucial, not just to the future of health care but also to the future of the republic, that the justices approach their pivotal deliberations on the basis of their best legal judgment, not their personal views about health care or the act.
The court's options are mind-bogglingly diverse. It can strike down the entire act, uphold the entire act or strike individual mandates and let the rest stand.
Whatever it concludes, it must attempt something that rarely, if ever, occurred in the executive or legislative gestations of the act — a focus that places the balance of need and constitutionality above the aim of political advantage.
Considering the acidic climate in Washington these days, it is very easy to imagine reactions to the court's decision that play to political audiences. No matter the ruling, a polarizing reaction that attempts to politicize it would be small statesmanship that damages the nation.
Instead, both sides should agree, now, to embrace the ruling, whatever it is, as our court's best wisdom. And simultaneously, both sides should recognize, now, that the obligations of leadership demand — indeed, the 40 million Americans said to be without adequate health insurance demand; the taxpayers who will be saddled with paying for whatever emerges demand — that political leaders toss aside the prejudices of partisanship and respond collaboratively to clear the gap in the availability of affordable, fair, high-quality health care.
Abortion, we can see, is an issue where it is difficult for two sides to find a common ground. But affordable health care? How can there not be common ground there? That it has not been found is unconscionable.
If the court strikes down the act or key provisions of it, it is virtually assured that nothing will be done to forge a health care compromise before November and little impetus, on either side, for that compromise afterward.
Little impetus, that is, except for the unrelenting need that has made this one of the most unsettling issues facing the nation for decades.
But if the court upholds the act, that will hardly end the controversy. Critics have raised legitimate questions about the sweep of this plan. The Supreme Court's decision will not make the issue go away any more than its declaration that runaway slave Dred Scott had no rights ended the issue of slavery.
No, the search for an appropriate response, whatever the court's ruling, will require political leaders on both sides to move beyond their personal stridency, and to think of the nation not in terms of constituencies but in terms of a unified but richly diverse whole.
No one is suggesting that that will be easy. But it is most acutely and unavoidably a demand of the balance of power that was so vividly demonstrated — and tested — before the eyes of the nation last week.