In a major blow to the Affordable Care Act, a three-judge panel of the D.C. Court of Appeals ruled this morning in Halbig V. Burwell that states without their own insurance exchanges cannot receive federal subsidies to pay for healthcare. If this ruling stands – the Obama Administration will challenge it and stands a very good chance of winning – middle- and low-income Americans who have reaped the benefits of subsidized healthcare under the Affordable Care Act will be subject to higher prices than they can afford. While last month’s Hobby Lobby ruling was a travesty, this ruling is more wide-reaching and potentially devastating to the Affordable Care Act as a whole. Without subsidies, the GOP can claim, as it has all along, that the Affordable Care Act renders healthcare more expensive for Americans. The mandate will backfire, forcing Americans who are no longer entitled to subsidies to shoulder greater costs, potentially creating a backlash against a law that has expanded coverage to millions of Americans so far. It is tempting to dismiss longshot rulings like today’s as empty GOP desperation, but each and every joke of a case is symptomatic of a broader threat to progressive legislation: conservative judicial activism. After all, it only takes one successful ruling, upheld by conservatives on the Supreme Court, to cripple a law. And today’s is just one of many.
There is tremendous hypocrisy in the GOP’s constant claims of an “imperial presidency” for relatively minor executive actions even as they use the judiciary to cripple a law passed in both houses of Congress. Think about this for a second: two un-elected judges playing word games with quotes lifted out of context from a long, extremely complex piece of legislation could theoretically decide the nature of America’s healthcare system. Before we laugh off rulings like today’s, we should consider how a quack like Scalia might react to a ruling that we consider ridiculous.
The media has focused on high-profile and fruitless challenges to Obamacare in Congress, such as Ted Cruz’s petulant government shutdown and John Boehner’s frivolous lawsuit. However, Republicans cannot currently inflict lasting damage on Obamacare through Congress because Democrats still have enough seats to block challenges and, if worst comes to worst, Obama can wield the veto pen. Boehner, meanwhile, lacks the standing and precedent to challenge the president’s discretion to enforce a law in accordance with changing conditions. The courts pose the real danger, as they need neither electoral majorities nor standing to tear apart the law.
The conservative movement that came to power with Reagan’s election in 1980 and held the presidency for most of the next three decades (with the exception of Bill Clinton’s presidency) allowed the Republican Party to stack the courts, both federal and local, with activist judges bent on imposing a reactionary vision on the country. The Obama and Clinton Administrations have done their best to reverse this disaster, but the damage is not yet undone. As long as conservatives control the courts, all liberal accomplishments in the legislature are subject to crippling sabotage. The Supreme Court already struck down Obama’s Medicaid expansion, depriving millions of Americans of healthcare. If, on top of this, federal subsidies are denied to more than half the states, the Affordable Care Act as it was passed will be unrecognizable. All that without the GOP winning a single vote in Congress. With such a precedent established, will future Democratic presidents dare risk taking on healthcare reform and other ambitious goals?
All is not lost if today’s ruling serves as a lesson for liberals. It is not enough to vote in presidential elections, watch Congress pass ambitious progressive legislation, then stay at home in the midterms and hope for the best. If we do not elect durable majorities in Congress that allow our president to appoint and confirm judges to the Supreme Court, the DC Court of Appeals and other key judicial posts, all of our grassroots activism, all of our get-out-the-vote efforts will be for naught. We should not see today’s ruling as cause for despair, but rather a reminder of just how much is at stake moving forward. Obamacare still stands, but we cannot assume that it will inevitably survive as the one, shining example of Obama’s legacy; that kind of self-satisfied complacency can only lead to disaster. The composition of our Congress in 2015 could very well determine whether liberals build a strong judicial presence that will last for a generation or allow Republicans to maintain their dominion over the courts. The composition of our Congress in 2015 will determine President Obama’s ability to appoint a progressive voice to the Supreme Court. With Ginsberg likely to retire soon, we cannot allow the GOP to stall the confirmation of a progressive justice or perhaps worse, force Obama into appointing someone who does not bring a progressive vision to the bench.
Today’s ruling isn’t just about Obamacare. It’s about the capacity of government to pass ambitious, complex, multi-faceted progressive legislation to benefit the American people. In other words, its about liberalism as a tenable political philosophy. If courts can pick away at every government program piece by piece for blatantly political reasons, how can we accomplish any liberal priorities? After all, dealing with climate change, inequality and other pressing issues will, if anything, require even more ambitious legislation than the Affordable Care Act. In terms of healthcare alone, can we ever have a single-payer option if Obamacare, a relatively modest attempt to improve healthcare in America, fails? Healthcare subsidies may not seem as sexy or pressing to average voters as a blatant attempt to deny women their reproductive rights, but it is incumbent on liberals to explain what’s at stake before it’s too late. Regardless of whether it stands, let today’s ruling be a call to arms.