Above all, we should celebrate. The Supreme Court, by a 5–4 vote, has left President Obama’s Affordable Care Act almost entirely intact. So the United States has finally satisfied a fundamental requirement of political decency that every other mature democracy has met long ago, and that a string of Democratic presidents, from FDR to Bill Clinton, tried and failed to secure for us. We finally have a scheme of national health care provision designed to protect every citizen who wants to be protected.
The Affordable Care Act does not change America’s tradition of using private health insurance as the basic vehicle for financing medical care. The scheme it creates is less efficient and rational than a single-payer system like Great Britain’s in which the national government employs doctors and hospitals and makes them available to everyone. But a single-payer scheme is politically impossible now, and the act erases the major injustices that disgraced American medicine in the past. Private insurers are now regulated so that, for example, they cannot deny insurance or charge higher premiums for people already sick. The act subsidizes private insurance for those too poor to afford it, and extends the national Medicaid program that has provided care for some of the very poor to cover all of them.
But it is nevertheless depressing that the Court’s decision to uphold the act was actually a great surprise. Just before the decision was announced, the betting public believed, by more than three to one, that the Court would declare the act unconstitutional.1 They could not have formed that expectation by reflecting on constitutional law; almost all academic constitutional lawyers were agreed that the act is plainly constitutional. The public was expecting the act’s defeat largely because it had grown used to the five conservative justices ignoring argument and overruling precedent to remake the Constitution to fit their far-right template.
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