Call me Debbie Downer, but the general jubilation among liberals over Justice Roberts’s ruling makes me shudder. Justice Ruth Bader Ginsberg, writing in her lengthy dissent puts it this way:
THE CHIEF JUSTICE’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it.
Writing right here, Leslie Savan’s correct. There are booby traps in the Court’s Commerce Clause reading. Those traps are baited and ready for tripping in the Medicaid part of the ruling. The huge obscuring shadow of the debate over the individual mandate left this part of the healthcare case in almost total media darkness. It was always the part of the ruling that had me most concerned, and Dr. Margaret Flowers of Physicians for a National Health Plan too. (The transcript’s here. Full video at GRITtv.org.)
Here’s how Flowers, with whom I had a chance to talk last week, answered my very first question:
Where we stand right now is that there are two things that we need to consider. One, of course is the decision around Medicaid and this is a very important decision, this is much more crucial. If the Supreme Court says that the federal government’s giving states money is tantamount to coercion, that’s a real problem because where does that end? If the federal government says you must meet minimum guidelines for education and we’ll give you money to help your schools, is that coercion? We really rely on government to provide a basic social infrastructure that takes care of people.
George Zornick laid out the dystopian possibilities for healthcare for the poor ahead of time. My friend Steve Rosenfeld, over at Alternet calls it the Outrageous Medicaid Ruling:
Roberts decreed that states that did not want to implement the ACA would not face the fiscal penalty of losing all of their federal Medicaid funds—as envisioned by the law. Instead they would only lose funds for the Medicaid expansion, such as for covering more poor people and creating medical clinics in underserved areas.…
GOP politicians’ beating up on the poor is neither new nor radical. What’s radical about this part of the ACA ruling is the potential impact on public sector—not private sector—healthcare, because that may slow the creation of a uniform nationwide public system that could one day lead to universal government-delivered healthcare.
Where does the Roberts ruling leave us? With a race-to-the-bottom patchwork of state systems that takes us back to the pre-Civil War, certainly pre-New Deal era. The implications for Flowers’s goal—a single-payer, national government-run health plan—are grave. But as Flowers points out, pick any national law—from the regulation of water quality to the protection of women’s health, or workers’ safety. For arguably the first time, states now have the right to reject any new Congressional spending requirements as coercive—and unconstitutional.
“Medicaid is a prototypical example of federal-state cooperation in serving the Nation’s general welfare,” writes Ginsberg in that stinging dissent. From welfare “reform” to multicultural education, since the 1930s, lawmaking over national issues has increasingly left states to interpret and implement the rules—pressure from states’ advocates made sure of it. All those laws are more vulnerable today than they were before yesterday’s ruling.
Everyone likes to claim a victory, but this one’s not for cheering. On the other hand, if ever there was a time to rearticulate and re-argue for the notion of the “Nation’s General Welfare” now is that time. This election is that time. Barack Obama, of all presidents, would be a good candidate to make the argument. What are the chances of him actually doing that, do you think? Which is exactly why I’m not cheering.