The Supreme Court of the United States was right to uphold the Affordable Care Act. It was a conservative decision, not a doctrinaire one.
To many Canadians, the bewildering complexity of American health-care arrangements – with Medicare for senior citizens, Medicaid for the poor and a wide range of company benefit plans for more or less fortunate employees – appears strange. There was no doubt that a universal health-insurance plan à la Canadienne would have been constitutional. But President Barack Obama did not take the simplest route. He saw fit to be conservative on health care; he did not try to dismantle the existing institutions, but added to them with “the individual mandate”: requiring individuals who are uninsured to buy insurance – failing which, they have to make an additional payment to the Internal Revenue Service with their income-tax returns.
When Chief Justice John Roberts was appointed by George W. Bush in 2005, there were dire predictions of a far-right Supreme Court. But he was essentially the author of the health-care decision on Thursday. The frequent “swing vote,” Justice Anthony Kennedy, opposed Mr. Obama’s legislation.
The Chief Justice’s reasons were quite conservative. He has long been critical of the very broad interpretation of the commerce clause of the U.S. Constitution that has prevailed for several decades, giving the federal government an almost free hand in economic regulation. If health care, too, were to be classified as commerce, as the government’s lawyers argued it should be, the commerce clause could have been used even more sweepingly to justify increasing regulation of all sorts of activities that are vaguely related to the economy.
Instead, the Chief Justice made a solid argument based on Congress’s power to tax. He observed, for example, that “taxes that seek to influence conduct are nothing new,” from protectionist tariffs to heavy taxes on cigarettes – and that the revenue raised from those who choose not to buy insurance will be substantial.
Mr. Obama and Chief Justice Roberts are not ideological soulmates. But the Supreme Court’s decision on “Obamacare” goes to show that moderation in American law-making is not dead.
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