By Jeffrey Toobin | The New Yorker
I will leave the waxing eloquent on this historic day to my colleagues. I have three brief observations about the legal implications of the passage of health-care reform.
1. Abortion. The negotiations between Congressman Bart Stupak and the White House over the executive order on abortion funding may rank among the most consequential inconsequential disputes in American history. It was important because it now seems likely that health care reform would have failed if Stupak and his allies had not voted for it. But the executive order itself is nearly meaningless as a legal and practical matter. Federal funding of abortion has been illegal under the Hyde Amendment for almost two generations. The health-care reform bill did nothing to disturb that status quo. Anti-abortion forces mobilized against the legislation but without ever establishing that it would affect abortion at all. In short, nothing happened on abortion—and, apparently, that made all the difference.
2. Constitutionality. Various states have threatened to go to court to assert that Congress acted outside its authority in passing the health-care reform bill. Even with a conservative Supreme Court, these challenges seem bound to fail. For decades, the Court has upheld the extensive federal role in health care through such programs as Medicare and Medicaid. This new law is a change in degree, not in kind, and courts will likely stay out of the way.
However, it’s also worth noting that the courts, including the Supreme Court, will be interpreting the new health-care-reform law for many years to come. Any new law raises a multitude of questions for interpretation, and this one will raise many. What’s covered? Who pays? How does the transition to the new system work?
It’s often been noted that the Supreme Court decides many fewer cases than it did twenty or so years ago. (The docket has gone from about one hundred and fifty cases a year to about seventy-five.) In defense of their relative lassitude, the Justices often point out that much of their business comes from the interpretation of federal laws – and Congress doesn’t pass so many laws anymore. Well, this is a big new law, and it will generate lots of business for the Justices.
3. The future. Liberals in particular have noted with frustration that the Senate has become a tremendous roadblock to legislative progress. Now that filibusters are routine on almost all Senate business, it takes sixty votes to do almost anything. That sclerotic process may look pretty good to liberals now, because it means that this piece of legislation is almost repeal-proof. It would take sixty-plus Republicans and a Republican President to get the job done (or undone). That’s not happening soon (or maybe ever). This law may turn out to be popular or detested, prescient or misguided—but it is here to stay.