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Health care reform survives

By voting to uphold the Patient Protection and Affordable Care Act, Chief Justice John G. Roberts Jr.erased concerns that the Supreme Court had become captive to a political rather than a legal agenda. As he promised to do during his confirmation hearings, Chief Justice Roberts in his decision released today crafted a narrow ruling that showed due deference to the other branches of government. In fact, his view of the most controversial element of the law, the so-called individual mandate — a requirement that individuals purchase health insurance or pay a penalty — cut through the political spin of Democrats in Congress and President Barack Obama. They had refused to call the penalty a tax, out of an effort to avoid breaking the president's promise not to raise taxes on the middle class. But Chief Justice Roberts said that's what the provision amounts to, and under Congress' broad powers to levy taxes, it stands.

The implications for the nation's health care system and for the American people are enormous. Had Chief Justice Roberts sided instead with the court's conservative wing, the entire act would have been thrown out — and with it, protections for Americans with chronic diseases and pre-existing conditions, the expansion of health insurance to millions who now lack it, and provisions to control the spiraling cost of health care in the United States. A rejection of the model for universal health care embodied in the Affordable Care Act would have left little other option besides a single-payer system, which is for the foreseeable future a political impossibility.

The 5-4 decision is not a complete validation of the Affordable Care Act. It narrows a provision related to the expansion of Medicaid, which is the law's mechanism for expanding health insurance to the very poor. In many states, Medicaid eligibility for childless adults is extremely limited, but the Affordable Care Act called for states to expand it to all those who fall below 133 percent of the federal poverty level, or about $14,500 for an individual. The court ruled that the penalty for states that refuse to do so — a loss of existing federal Medicaid funds — was unconstitutional. Although that element of the decision leaves open the possibility that access to health care for the poor will vary significantly among the states, it corrects something of a perversion in the original law: The penalty for failing to expand Medicaid sufficiently was to take health care away from the very poor.

Speculation before the decision centered on whether the conservative majority on the court would reject the notion that the individual mandate was authorized by the Commerce Clause and, in the process, overturn precedents for Congress' ability to regulate the economy dating to the New Deal. Without that mandate, insurance companies would not be able to cover pre-existing conditions or provide many other benefits without raising premiums drastically. Interestingly, a majority of justices did conclude that the mandate was not a permissible regulation of interstate commerce — which, at first glance, would seem to present a real limitation on Congress' ability to address problems that the states can't handle on their own. After all, granting greater deference to Congress' authority to levy taxes is of little use in an era when approximately half of Congress has signed a pledge never to raise taxes under any circumstances.

But the way Chief Justice Roberts (who was joined in his opinion by Associate Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor) construed the issue should limit its impact as a precedent. He drew a distinction between regulating an existing commercial activity and bringing one into existence through an act of Congress. That is, can Congress force people to engage in economic activity, or can it merely regulate those already participating in it? That was a novel issue presented by this case, and there aren't a lot of other obvious instances in which it would come into play.

This ruling comes in the middle of a hotly contested presidential race, and it is bound to be debated fiercely between now and November. But its electoral implications are unclear. Health care reform is the signature accomplishment of President Obama's first term, and this ruling validates its constitutionality. However, despite the popularity of many individual elements of the act — prescription drug discounts for seniors, the opportunity to keep a child covered under a parent's policy until age 26, and the rollback of lifetime limits on health care benefits, to name a few — it remains unpopular as a whole, a point the president himself made in his low-key, "let's move forward" reaction to today's decision. Mr. Obama's victory in court has already stirred promises from many Republican leaders to fight hard for the law's repeal, including from Mr. Obama's Republican opponent, Mitt Romney. In his own reaction to the decision, Mr. Romney promised, if elected, to make repeal of the Affordable Care Act his "Day One" priority and said he sided fully with the court's dissenters, Associate Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas andSamuel A. Alito. But the degree to which Mr. Romney can make this issue a key to his electoral strategy is limited by his role in enacting a virtually identical act on the state level when he was governor of Massachusetts.

Whichever way the politics cut, the election is, at least, the proper venue to debate this law. It is a matter of policy and politics that should be decided by the people through their elected representatives, not by lifetime-appointed judges. At a time when public esteem for the Supreme Court has soured amid a series of seemingly partisan decisions, Justice Roberts' opinion recognized that fact. It now falls to President Obama to convince the American people that this act will improve the quality of health care and their access to it while limiting the growth in its cost. It is a strong argument, and now, unfettered by constitutional questions, it is time for him to make it.

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