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Freedom, Power, the Affordable Care Act and the Supreme Court

The Supreme Court ruling on Thursday took everyone by surprise. Not only was the outcome different (upholding rather than overturning the Affordable Care Act) and the swing-vote someone other than most pundits imagined (Chief Justice Roberts rather than Justice Kennedy), but the ruling itself was unusual. The Supreme Court declared the use of the commerce clause as the foundation of the Affordable Care Act’s individual mandate illegitimate while simultaneously defending the mandate’s constitutionality (through the Federal government’s taxation powers).

Randy Barnett, the legal architect of the challenge, was chagrined, commenting to NPR, “It is weird to win and lose at the same time. It is bizarre to win on the major legal claim…but still lose on the outcome.” Nevertheless, he was satisfied that his concerns had been taken into account. In fact, Chief Justice Roberts accepted Randy Barnett’s argument almost completely: the appeal to the commerce clause in the ACA was unprecedented, unlimited, and dangerous; furthermore, it was unnecessary (because congress already possessed the requisite authority through its taxation power).  Following Randy Barnett’s lead, the Chief Justice found a way to thread the needle between the threats of excessive and insufficient Federal power.  The Supreme Court restrained Federal power by overruling the Affordable Care Act’s expansive reading of the Commerce Clause but also permitted the Federal Government sufficient power to manage national health care through taxation.

At its heart, this case was a conflict over whether it was more dangerous to the well-being of the nation for the Federal government to have too much power or too little. Those against the Affordable Care Act argued that the Federal Government was laying claim to excessive power, eventually sending the nation sliding down the slippery slope toward totalitarianism. Those in favor of the Affordable Care Act argued that overturning this law would prevent the Federal government from resolving a significant national problem and move America’s democratic republic one step closer to a plutocracy of the elite.

This is not a new debate in the American body politic. The tension between the twin dangers of excessive and insufficient power have been with us since the Constitutional Convention of 1787.  The framers of the Constitution wanted to provide the Federal government with sufficient power to “establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty” without giving it so much power that the government itself became a danger to these purposes. Far from resolving this debate, the U.S. constitution insisted that every generation confront this fundamental question.

Today, the rhetoric of freedom has become an expression of frustration among citizens who feel at the mercy of distant bureaucracies. Those, like Governor Romney, who wish to constrain Federal power, wave the flag of liberty and hold out the specter of “a larger and larger government, more and more intrusive in your life, separating you and your doctor” ( Governor Romney’s response to the Supreme Court Decisions). But, they refuse to acknowledge the ways in which freedom is also endangered by the accumulation of power in the hands of corporate bureaucracies. People’s freedoms are thwarted by insurance, pharmaceutical, and medical conglomerates just as surely as by governmental dictates. In fact, these “private” institutions are, in many ways, less responsive and responsible to ordinary people than the government. These are organized to give priority to the profits of their shareholders rather than to the interests of their employees or even their customers.

Governor Romney sees overturning the Affordable Care Act as a necessary step toward restraining the government’s intrusion into its citizen’s lives and returning to the “American people the privilege they’ve always had to live their lives in the way they feel most appropriate.” But, he refuses to acknowledge that the “free” market cares little about liberty. It heeds only money; if you have it, the market will realize your wildest dreams; if you don’t, it withholds even the necessities of life. In the United States today, liberty requires not only limiting the power of the federal government, but also providing it with enough power to regulate the corporations and the market mechanisms that currently dominate the healthcare system.

Liberty cannot simply mean freedom from responsibility for each another, as though we are independent individuals whose lives and decisions have no impact on one another, as some in the debate argue. We are embedded in relationships of interdependence and mutual reliance. This can be seen quite clearly in the sphere of medicine. The healthcare system is not a “free” market, where goods and services are exchanged for money apart from other values. Those who embrace the calling of medicine recognize a responsibility to care for the sick, whether they can pay or not. In our society, hospitals may not turn away those who need care, even if they are unable to pay. The very idea of insurance, including medical insurance, is to share the risks and rewards of life with one another.

In the medical sphere we see the limits of imagining freedom simply as individual choice. Here we begin to see that true liberty requires sharing the burdens and rewards of our interdependent existence fairly.  We will all need medical service at some point in our lives and so we should all contribute to a system that helps us all when we need it.  Most of us do this through private health insurance companies. Others, who cannot afford health insurance, participate in government programs. The healthcare system as a whole, however, faces the problem of free-riders—those who choose not to pay into the system but receive the rewards of care nonetheless. We must find ways to insist that these people become full participants in the shared burdens as well as the shared rewards of our health care system– something that only the Federal government, with its regulative and legal power can accomplish.

This picture of justice and freedom, which identifies us as people embedded in relationships of interdependence and mutual responsibility, does not grow out of the experience of the marketplace. It is a moral vision produced in more cooperative and interdependent spheres of life—our families, religious communities, and civic organizations. As a Christian, I am persuaded that because of God’s love for me in Jesus Christ, I am called to love and serve my neighbors. As a Christian, I am also aware of the way in which sin infects the human heart and human relationships tempting each of us to serve ourselves rather than others. This is the moral vision of the United States Constitution as well, which limits all powers—including the power of the federal government itself—lest any impose its will on the others unjustly. This system of mutual restraint is also a system of dialogic interdependence, which binds all the various people, groups, institutions, and spheres of life into a single cooperative body that shares the burdens and rewards of life.

The Supreme Court decision on Thursday drew a fine line between giving too much or too little power to the Federal government. Chief Justice Roberts found a compromise position that restricted the expansion of Federal power into new areas of American life while also insisting that the Federal government have sufficient power to solve certain fundamental problems in the American health care system. This ruling has not ended public debates about what justice entails or what we owe to one another as citizens of this nation. It has not resolved political conflicts or social power struggles. What it has done is create space for these debates to continue. You can be sure that the election campaigns of 2012 will be full of arguments about power, justice, freedom, and…TAXES. I hope that as the debate over healthcare moves forward, we will come to see that taxation is not intrinsically evil. It is, in fact, one of the ways in which we share the burdens of life together so that we can share its rewards as well. Such debates are one of the burdens and also one of the rewards of being free citizens of  this republic.


Tim Beach-Verhey is co-pastor, with his wife, Kathy, of Faison Presbyterian Church. He also teaches at Mount Olive College and is the author of Robust Liberalism: H. Richard Niebuhr and the Ethics of American Public Life.



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