The New Health Dialogue

On Wednesday, June 27th my roommate convinced me that we should give up the comfort of our intern-housing beds for the cold hard concrete of justice and the company of other "Supreme nerds," waiting in line to witness the historic ruling on the ACA.  I'm usually not that compulsive, and I resisted at first. After some powerful persuasion, I eventually consented to go.  Interning here in DC this summer has presented me with many invaluable opportunities, but none has been as amazing as what awaited me next morning.  I owe my roommate a big "Thank you" for not succumbing to my stubbornness.

You could feel the excitement in the air.  Most of us were students or recent graduates, interns or nearby residents. Many didn't sleep that night, choosing instead to stay up night sharing opinions and speculations. Some finally succumbed to exhaustion.

We woke up in a sea of cameras. At 5:00 AM there were more camera crews set up than at 10:00am on Monday, when the Arizona case was released.  

As the morning wore on, I found myself constantly mulling over what might happen inside that beautiful building later that day. This would be among the most important, far-reaching cases of my lifetime.  

Politically I have always found a bit of both sides in myself.  With conservatives, I share concerns about the growing powers of government.  I was wary of the expansion of power that upholding the mandate would grant to Congress's interpretation of the Commerce Clause. (Yes--I was concerned about the broccoli argument.)

On the other hand, as I have learned more about the Affordable Care Act, it has become more and more appealing.  As a future physician I love the patient protections and expanded access that the health care law provides.  I also believe that sometimes the spirit of the law is more important than the letter of the law.

I hoped for a ruling that satisfied my views on both ends of the spectrum.  

While we waited inside I talked with a political science major from Johns Hopkins University.  When I asked her how she would respond to someone who believes that the ACA violates the Constitution she told me about her "Comparating Constitutions" class.  

"Under the United States Constitution, the government would not be violating its duty if it just sat back and did nothing," she said.  "Other countries' constitutions  have specific provisions written in them that forbid the government from doing nothing.  They have to provide certain services. Because of this, they are much more welcoming of big social changes like health care reform." When I asked if she advocates amending the constitution to have such duties she said, "Well, that's so long and difficult."

Her attitude surprised me.  In effect, she was saying, "Yeah, I realize there are limits in our Constitution, but they shouldn't get in the way of doing what society believes is right." 

Eventually we were shown upstairs to a room with small lockers where we were told to leave all electronic devices and other personal items.  From there we were directed to the courtroom where we waited and whispered for half an hour. Despite my profound lack of sleep, as soon as the Justices walked in a surge of adrenaline flooded my body.  No one but this relatively small group of people I was sitting with would ever witness these words uttered out of Justice Roberts's, Ginsburg's and Kennedy's mouths.  It was amazing to think that I was watching history before anyone else.  

The mandate was found unconstitutional under the Commerce Clause, but constitutional under the taxing power, and the rest of the law stood with it. (The Court did overturn the expansion of Medicaid as coercive, but the only part that was actually removed was the threat of removing all Medicaid funding for states that choose to opt out of the expansion.) I don't think there was a soul there who saw what was coming. As for me, I was elated! Upholding most of the ACA meant that meaningful health care reform would continue, and the check on the Commerce Clause abated my fears of growing Congressional power. Both of my concerns had been addressed.

I was surprised, however, by the "strike-the-whole-thing-down" position taken by the four justices who wrote the dissent.  As I see it, there are many parts of the ACA that are completely constitutional. The opinion of the dissenters seemed to be the mirror opposite of the opinion I had heard from the political science student just an hour earlier. According to the dissent's view of Congress's taxing and spending power, "the Court has long since expanded that beyond ... taxing and spending for those aspects of the general welfare that were within the Federal Government's enumerated powers." They cited "the Department of Education, the Department of Health and Human Services, [and] the Department of Housing and Urban Development" as "sizeable federal Departments devoted to subjects not mentioned among Congress' enumerated powers, and only marginally related to commerce."

In other words, they were saying, "Yeah, these agencies are solving pressing problems, but they extend beyond Congress's constitutional powers." Under similar logic, they argued that the whole Affordable Care Act should be struck down.

Picture:  Associated Press

After the Court finished the rulings, and the term, we were quickly ushered outside.  

Michelle Bachman was on a loudspeaker in the middle of the Tea Party crowd, insisting that since the justices had failed it now falls to the voters to repeal Obamacare.  She was drowned out, at times, by boos and chants of "Four more years" by people holding "we love Obamacare" and "stand up for women's health" signs.

 I stopped to ask a woman holding a "Protecting Our Care" sign what she thought about the ruling.  She was happy, of course, that the law had been upheld.  I followed up by asking her what she thought about Justice Roberts' ruling that the mandate doesn't stand under the Commerce Clause yet does stand under the taxing power.  She gave me a confused look and said, "I don't know what you're talking about."  Caught off guard, I awkwardly ended the conversation as I came to a profound realization:  most of these people here don't care about the specifics.  They're not here to find out how all the details play out.  

I would venture a guess that nearly everyone there that day would very comfortably identify themselves with one of two groups: those for limited government or for social justice.  In each group, as long as their ends are met, the details aren't important.  The limited government crowd wanted the law overturned--despite the fact that our health care system is on life support and millions don't have access to care.  The social justice crowd was elated by the ruling--regardless of its implications for the federal government's power.

In contrast to these groups, Court's job is only to determine whether the law in question is Constitutional--nothing more, nothing less.  As Justice Roberts put it, "we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them." 

In that sense, it seems like this discussion--between two parties who care more about the ends than the means--is sort of out of place in front of the institution that is primarily concerned with the means. It was precisely the means, the details, that allowed me to feel like the day had been a win-win. By knowing the specifics of the law and the case against it, I felt like I was the only one reveling in a two-sided victory!

If the limited government crowd would have paid a little more attention to the details they may have found a silver lining in their defeat--the ruling on the Medicaid provision could end up being a major limit on federal power over the states, and some liberal bloggers have been complaining that the Court's ruling has "gutted the commerce clause."

Instead of examining the ruling, the groups were too busy volleying taglines. When this type of one way discussion takes place and people disregard the details, they tend to talk past each other.  The result is conflicting, often embarrasing, messages...

...like this:    

...or polls like this (CBS News/NY Times):  

And yet, while it might not always make sense, we have a long tradition of protesting in front of the Supreme Court.  I'm not suggesting that should end. Nor am I suggesting that we need to avoid the use of hyperbole to get one's point across.  Sometimes it can be entertaining.

But, are the two positions really irreconcilable? Can we fix the health care system and still keep limits on governmental power?  I believe we can, and I believe that is what we saw last Thursday.

Politics will continue to play on, speculations about Justice Roberts's reasoning will continue, but if we want to get things done we need to stop talking past each other, care enough to see what the other side has to offer, and build off our common ground.  

In the coming months and years, health care reform must continue. The ACA, though a good step forward, is far from a complete solution to the health care crisis. We have some tough questions ahead of us involving the quality and cost of care. Solving these problems will require our meaningful dialogue and thoughtful consideration of the details.

And by considering the details we may just discover, like I did, that solving problems doesn't have to be one-sided. We can find a middle-of-the-road solution that covers everyone's needs. That way, no one has to feel like they are "left out in the open."