Stephen Henderson: Health act and court ruling were both shaped by conservatism - Detroit Free Press

Now that the landmark health care ruling has had a little time to settle into the national consciousness, here are a few third-day thoughts about what the Supreme Court did -- and what it means.
• Conservatives decried Chief Justice John Roberts' decisive opinion as an attack on liberty and all manner of other horrible things. But in court terms, this is a restrained and conservative ruling that, given Roberts' history and background, was at least somewhat predictable.
A friend reminded me Thursday that I'd said back in December that I expected Roberts (and Justice Anthony Kennedy) to uphold the law, principally because the chief justice is not in the habit of overruling acts of Congress. It generally takes something extraordinary for him to do that. (I was wrong about Kennedy and also wrong in a column early last week saying that Justice Antonin Scalia could prove determinative in the case, which he did not.)
Roberts' reluctance to thwart Congress is at the core of judicial restraint, the very conservative notion that as an unelected branch, the courts owe deference to Congress' democratic instincts and accountability to the people. It has been an important part of Roberts' judicial approach since he was a law clerk for legendary U.S. Court of Appeals Judge Henry Friendly, among the 20th Century's most rapt adherents to the idea of judicial restraint.
In 2005, when I covered Roberts' confirmation hearings in Washington, I wrote that his record suggested strongly he'd be a "pragmatist" whose restraint would be as likely to disappoint conservatives as it would liberals. In some of his rulings since, he has disappointed me on that front.
But his health care decision marked a bold return to the Roberts I remember.
Roberts couldn't justify the health care law under the commerce clause of the Constitution, he said. In fact, he tersely and summarily dismissed the idea that Congress could compel commercial action by forcing people to buy insurance.
But his instincts -- to preserve congressional actions unless impossible to do so under the Constitution -- moved him to strongly consider another way: Congress' taxing authority was sufficient to authorize the insurance mandate.
"We have a duty to construe a statute to save it, if fairly possible," Roberts wrote.
The outcome, if not the logic, looks, in hindsight, entirely predictable.
• Conservatives continue to assail the health reform law as too liberal an approach to the problem. But that's hardly an accurate description, and in fact, the entire discussion of health reform has moved far to the right over the last 20 years.
The Affordable Care Act is full of ideas that emerged from conservative circles, and is eons from the classic liberal approach to health reform, which would be to craft a single-payer, universal system like those in other industrialized nations.
Start with the insurance mandate, which was hatched as a conservative response to the reforms President Bill Clinton proposed in the early 1990s. The mandate was, of course, the centerpiece of presumptive GOP presidential nominee Mitt Romney's health reforms as governor in Massachusetts. And it wasn't until it became part of President Barack Obama's health reform plan that the GOP turned on the idea with a vengeance.
The health exchanges in the reforms are also based on a conservative idea: allowing individuals and some small groups to band together to buy insurance at lower prices. Insurers will compete for the business of these exchanges, and the folks in the exchanges will gain important market leverage. Seriously, it doesn't get much more market-based than that.
Health reform also includes the state innovation waiver, which in 2017 will allow states to dump the federal reforms if they can come up with a better, more cost-effective way to achieve the same outcome. That's respectful of the delicate constitutional balance between state and federal powers, and in line with conservative ideals about states being incubators of innovation.
There are other conservative ideas that were part of health reform at various times before it passed, including allowing people to buy insurance across state lines. But they were excised in the process of passing the legislation -- and now, the GOP is dead set against the whole law.
Going forward, though, it would be more constructive for Republicans in Congress to acknowledge how far the whole debate on health reform has moved in 20 years, and how much the current law is a hodgepodge of both liberal and conservative notions.
That might produce what everyone needs: a way to move forward to cover more Americans and lower health costs. And it will end the destructive political conflict that has consumed the nation for the last two years.
Stephen Henderson is editorial page editor for the Free Press and the host of "American Black Journal," which airs at 2 p.m. on Sundays on WTVS-Channel 56 in Detroit. Contact him: [email protected] or 313-222-6659.

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