Recent Supreme Court Rulings on “Obamacare” and the Arizona Anti-Immigration Law: A Momentary Respite in a Downward Spiral

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The main factions of the U.S. bourgeoisie have been slapping themselves on the back in raucous celebration the past two weeks after the Supreme Court dealt it two key victories in its vicious faction fight with the insurgent right-wing factions in the Republican Party. First, the Court threw out just about about every provision of Arizona’s contentious anti-immigrant law (SB 1070). Although, the court let stand a provision that requires police officers to check the immigration status of anyone they have in custody for another crime if they have reason to suspect they are in the country illegally, this provision does not represent a dramatic departure from what police officers already do in most cases. The court threw out the other more contentious provisions of the law that were a direct challenge to federal authority, including making it a state crime for an illegal immigrant to be Arizona and allowing police officers to stop and question anyone they had probably cause to believe was in the country illegally (the so called  “Papers Please” provision).

Later the same week, the Court released its decision on President Obama’s signature domestic policy achievement—his plan to reform the nation’s health care system that has become known as “Obamacare.” This decision was nothing less than a political stunner as the Court upheld the central tenant of the law—the so called “individual mandate” that requires everyone who does not otherwise receive health care insurance to purchase a policy from a private insurance company or pay a tax penalty. This decision flew in the face of most political prognosticators and court watchers, who after the court heard oral arguments on the law in March, were fairly certain either the entire law or the individual mandate upon which the rest of the law’s provisions depend—would be ruled unconstitutional.

What was even more surprising was that in each of these decisions, the George W. Bush appointed, generally conservative Chief Justice John Roberts voted with the court’s liberal justices (Breyer, Ginsberg, Soto-Mayor and Kagan) to side with the Obama administration. In fact, it was Chief Justice Roberts’ vote that delivered victory to the President in the health care case when even the Court’s only acknowledged “swing vote” (Kennedy) sided with the court’s right-wing justices (Scalia, Thomas and Alito) to strike down the individual mandate.

This represented a double victory for the President and the main factions of the bourgeoisie he represents. First, on the policy level, his health care reform survived a very aggressive legal challenge from the right and is now the constitutionally validated law of the land. Second, the fact that it was Chief Justice Roberts who sanctioned the law, allows him to make the political case that the law does not represent some attempt to install a Western European socialist style health care system in the United States.

These two legal victories for the President set off a virtual media cavalcade on all sides of the bourgeois spectrum. For the mainstream media, these decisions represented a break in the growing partisan rancor threatening to tear the country apart.  According to this narrative, the Supreme Court, and with it the entire American political system, would soon regain a measure of its legitimacy as it dawned on people that despite the growing ideological divide, the nation’s political institutions could come together to get something done of importance for the national interest after all. For the more left leaning media outlets, these decisions, while not ends in themselves, were important moments in checking the right-wing backlash against the President and opening the road to more progressive reforms to come: such as establishing a path to citizenship for illegal immigrants and “Medicare for all.” Not surprisingly however, the right-wing cacophony of Fox News, Rush Limbaugh, etc. was stunned by the decisions. Expecting victory from a Supreme Court that many have described as the most conservative in generations, they got the shaft once again, fueling a vicious outburst in which some right-wing commentators were moved to question Chief Justice Roberts’ mental health.

So, what do these two decisions in the Obama administration’s favor represent for the life of the U.S. ruling class? Regular readers of Internationalism will be familiar with our analysis of the political crisis of the U.S. bourgeoisie, which we have been developing since at least the disputed 2000 Presidential election that brought George W. Bush into office against the consensus of the main factions of the ruling class. As part of this analysis, we have drawn attention to the increasing difficulties of the U.S. state to act in the overall interests of the national capital due to the reciprocal forces of social decomposition that have manifested themselves within the U.S. political apparatus as a deepening ideological decline of the Republican Party.  According to our analysis, the GOP has undergone a progressive process of right-wing ideological hardening such that its ability to act as a credible party of bourgeois national government has been called into question.  

However, more than simply a process affecting the Republican Party alone—these tendencies have forced the Democratic Party to move ever further to the right itself in order to negotiate the structures of the American state within which it must function. The result of all this has been a general paralysis of the American state capitalist apparatus on many of the burning issues facing the national capital, especially at the domestic level—immigration and health care chief among them.

Does the Obama administration’s recent victories on these issues in the Supreme Court call our analysis into question? Do they mark a reversal in the process of ideological decomposition of the U.S. political apparatus? Simply put, we don’t think they do. It is true that the main factions of the bourgeoisie won two important victories with these decisions. But it is important to put them in the proper perspective, which we will attempt to do below.

Arizona Anti-Immigration Law: “Red States” Challenge American Federalism

On the immigration issue, it must be acknowledged that the Obama administration only won a defensive victory when the Arizona law was ruled unconstitutional in its main provisions. The President’s victory must be seen in the context of the severity of Republican run Arizona’s challenge to federal authority[1]. If upheld, Arizona’s law would have foreshadowed a serious thereat to the national government’s ability to set immigration policy for the entire country. The spectre of each state having its own immigration laws was obviously too much for the national state to tolerate, and as such the Supreme Court’s decision to back the Obama administration is not surprising. However, it should be kept in mind that three justices actually voted to uphold Arizona’s law. The conservative justice Scalia even used his bench statement to attack the Obama administration’s entire approach to the immigration issue expressly sanctioning each state’s pursuit of its own immigration policy. While Scalia’s view may be in the minority on the court at this time, it is telling of the overall crisis facing the U.S. bourgeoisie that such political sentiment can be uttered from the bench of the nation’s highest court—the supposedly “apolitical” branch of government. Scalia’s actions stand in sharp contrast to the Court’s consensus on crucial issues in previous eras of state capitalism, such as its unanimous decision to end segregation in schools in Brown vs. Board of Education in 1954. Scalia’s vitriol is sure to incite the anti-immigrant right and give the right-wing factions of the bourgeoisie a glimmer of hope that a different court—or a different Chief Justice—would have given them different results.

Clearly, the President’s legal triumph on this issue represents only a defensive victory. The political prospects for enacting comprehensive immigration reform anytime soon seem doubtful. This is an issue that the main factions of the bourgeoisie have been trying to address for some time now, including some of the more rational figures in the Republican Party who fear a coming “Balkanization” of American society. The need to establish a rational immigration policy that integrates the more than 10 million illegal immigrants living within its borders into society, gains their cooperation with police and the state bureaucracy and which faces the coming demographic changes to American society is one of the most important domestic issues facing the U.S. national capital today. However, it is unlikely that much progress will be made on this issue as long as the Obama administration faces a hostile Congress dominated by a Republican Party that seems intent on exploiting anti-immigrant sentiment for immediate political gain. Moreover, it is likely that as the economic crisis deepens the issue of immigration will become an even more divisive issue as the state struggles to manage the crisis and maintain its ideological control over the working-class. While it is true that the stream of illegal immigration to the United States has slowed as a result of the economic crisis, this does not mean the issue will go away anytime soon.

“Obamacare”: Sometimes Miracles Do Happen

On the health care issue, it is true that the Supreme Court’s upholding of Obamacare is a major victory for the main factions of the bourgeoisie. While we can’t go into all the details of the issue here,[2] the need to address the US’s costly and inefficient healthcare system, which is a major drag on its competiveness, is of the upmost importance to the national capital. If Obamacare had been struck down by the court, it would have a serious political and policy catastrophe for the entire US bourgeoisie and President Obama in particular. First, this would have destroyed the only major piece of legislation to reform the nation’s healthcare system to actually make it through Congress in a generation—forcing the main factions of the bourgeoisie to start from scratch. Second, it would have invalidated the President’s signature domestic policy achievement calling the prospects for his reelection this fall into sharp question and raising the spectre of a Republican President governing with a Republican controlled Congress—an arrangement that the last time it was tried delivered disastrous results for the national capital.

Nevertheless, the President’s victory on this issue is only impressive in the context of how close it was to an actual defeat. In the days after the decision was delivered, it was revealed that Chief Justice Roberts originally sided with the court’s conservative justices voting to rule the individual mandate unconstitutional before ultimately changing his mind to uphold this provision. Although Justice Roberts rejected the Obama administration’s argument that the individual mandate should be ruled constitutional under Congress’ authority to regulate interstate commerce; he nevertheless found an alternate legal basis to uphold it: Congress’ authority to tax. [3]

In fact, it has been reported that the court’s supposed swing vote—Justice Kennedy—spent months lobbying Roberts to change his mind once again and vote with the conservatives to overturn the law. So torn was Roberts that it appears he actually wrote both the majority opinion to uphold the law, as well as the bulk of the minority opinion to strike it down! In the end, the fate of the President’s most ambitious policy to date, and perhaps his entire Presidency, rested in the hands of one man—whom Obama as a Senator had voted against confirming to the Court. So much for the rule of the people! It appears likely that it was only a massive media campaign around the growing illegitimacy of the Court in the public’s eyes, its deepening partisanship and ideological decay that moved Roberts to change his vote in order to prove to the nation that the Court can still be a respected legal body that rules according to the law rather than politics.[4] Either that, or somebody other than Justice Kennedy was partaking in some serious arm-twisting behind the scence. In either case, while the main factions of the bourgeoisie celebrated their victory, they probably couldn’t help but be extremely nervous by how close it appears to have come to being a total rout.

However, the upholding of Obamacare does not in any way represent an overcoming of the healthcare issue for the U.S. national capital. Not by a long shot. As we analyzed in our previous article on the issue, Obamacare is at best a modest reform that leaves many of the structural inefficiencies of the system in place. In its main, it is a mechanism for reducing “free riding” by getting more and more people to pay into the health care system, but it does not attack the basic features of the system that make it so expensive.

Beyond this though, just because the law was held to be constitutional by the Supreme Court, does not make it politically legitimate. Although public opinion polls released in the days after the decision showed a modest uptick in support for the law, it remains far from popular with the electorate. Moreover, Republicans have shown no indication that they will let up in their opposition to the law and Republican Presidential nominee Mitt Romney greeted news of the Supreme Court decision with a vow to “repeal and replace” the law as soon as he is elected President. Of course, the fact that Romney was the original author of Obamacare at the state level in Massachusetts has not prevented him from running against his own plan on the national level.

Many pundits have stated their belief that the court’s decision now gives President Obama and the Democrats the opportunity to resell this law to a skeptical public. And certainly they have not passed up the opportunity. But the ideological terms upon which they have decided to approach this have been curious indeed. All of a sudden, as Democratic operative after Democratic operative on the talk shows have stated, Obamacare is really a law to prevent people from “freeloading,” by forcing them to buy insurance. In the end this shouldn’t be surprising. The Democrats have adopted Republican rhetoric to try to sell a law that was originally devised by Republicans. The hypocrisy of the bourgeoisie—left and right—couldn’t be more obvious! All the talk about how the law will help those without insurance has been downplayed, as the cruel language of punishment has surged to the forefront. In bourgeois politics the logic couldn’t be more utilitarian—whatever it takes to win the election.

However, even more ominous is the fact that despite upholding the individual mandate—the Court struck down the part of the law that mandated the states’ to expand Medicaid coverage (the complex state/federal program that provides modest medical coverage to the poor). This provision of the law required states to expand eligibility for Medicaid to all persons whose income is within 133 percent of the federal poverty level or risk losing all federal Medicaid funding. In ruling this provision unconstitutional, the court made participation in the expanded Medicaid program optional for each state. Despite the fact that the federal government would cover the entire cost of this expansion for the first three years and then 90 percent after that, a number of Republican Governors have already said they will refuse to participate in Medicaid expansion. At least 17 million of the supposed 32 million people who would gain access to health care coverage under Obamacare would have gotten it through the expansion of Medicaid. If a number of Republican controlled states refuse to participate, this number will have to be revised downward, as will the expected overall economic benefits of the law to the national economy that are supposed to accrue from expanded coverage.

In addition to a possible fight over Medicaid expansion, some Republican Governors have already stated their intention to obstruct the setting up of the state level insurance exchanges through which people forced to buy insurance through the individual mandate would obtain coverage. This poses the threat of another round of costly and drawn out legal battles between the Obama administration and the various “red states” surrounding the implementation of the law. While some political pundits believe these Republican Governors to be engaged in a cynical political bluff, as many of them did about acceptance of federal stimulus money, others caution that the virulent revulsion to Obamacare in the Republican Party should not be underestimated.

In the final analysis, it is this political opposition emanating from the Republican Party, incited by its Tea Party faction, that represents the most serious threat to the ability of the state to act in the overall interests of the national capital. Driven more by ideology than a practical approach to the problems facing the state, it is perfectly possible that a Republican President governing together with a Republican Congress might completely overturn Obamacare rendering the last four years a total waste. While this is still an unlikely outcome, it is not impossible to imagine. In the current political climate, the very continuity of the state and its policies is threatened by a deepening ideological decomposition, which is reflected in the vitriolic political clashes that are now common place within the US political class, even on issues that seem as if they should bring a more general consensus.

As for the Supreme Court, it would probably be a mistake to view Chief Justice Roberts’ defection on the issues of immigration and healthcare as indicative of some kind of return to normalcy. Later in the year, the Court is expected to take on yet another series of controversial cases that, if Roberts’ prior rulings are any guide, could see the court invalidate long standing precedents on affirmative action and civil rights. The court is also set to take up the contentious issue of gay marriage. While we can’t say which way the Court will rule on these issues, it seems likely it will continue to be a central factor in the overall political crisis of the bourgeoisie, even if it has received a temporary reprieve of its image as a result of Robert’s defection.

From our perspective, the political crisis of the U.S. bourgeoisie is likely to continue indefinitely. On the same day that the Supreme Court upheld Obamacare, the Republican Congress voted to hold Attorney General Eric Holder in contempt of Congress in their investigation into the “Fast and Furious” gun-waking program. So strange is the Republican obsession with this issue, that it appears their interest in the case is motivated primarily by adherence to a bizarre conspiracy theory according to which the Obama administration was trying to stoke violence in Mexico in order to use it as an excuse to abolish the second amendment right to own guns in the United States. It is this far-out belief that has led to the first ever contempt charge against a sitting cabinet member in United States history.[5]

The forces of social decomposition and their reciprocal effect on the structures of the state are driving this ideological deterioration of the US ruling class. While there will be moments when the main factions of the bourgeoisie win battles (it is not for nothing that they are the “main factions” of the bourgeoisie), it is likely that the US state will continue to be plagued by a certain level of paralysis on the main issues facing the national capital, political vitriol of unprecedented proportions and a deepening crisis of legitimacy in the institutions of bourgeois government.

At the root of these developments is the insuperable crisis of the global capitalist system, which shows no real signs of abatement. Even the more rational factions of the US bourgeoisie are beginning to realize that their ability to manage this crisis is fleeting. The talk shows are rife with fearful discussions of the changing nature of the economy—an economy that many now acknowledge will be marked by high unemployment, low consumer demand and continued financial turbulence indefinitely. While Obamacare may be a rational mechanism for addressing some aspects of the crisis in the US healthcare system—one must wonder what the legal obligation to buy private health insurance will do to the economy. The younger generations of workers already have to pay 10 to 15 percent of their income towards their government-backed student loans. Now, under Obamacare, another chunk of their paycheck will go towards health insurance or the tax penalty, before they have even spent a dime in the consumer economy! The bourgeoisie really does seem to be running out of tricks!

Still, there are even more dangerous rocks ahead for the US bourgeoisie. The volatile nature of the situation in Europe presents a political and economic variable they simply do not control. At the same time, the growing imperialist tensions in the Middle East threaten to spiral out of control as the threat of a unilateral Israeli attack on Iran looms. Domestically, another round of contentious political battles over the debt ceiling and the expiration of the Bush tax cuts are not far off.  The announcement of terrible job numbers for the month of June were a strong reminder that whatever Mitt Romney’s political difficulties on health care and his reputation as a “vulture capitalist”, Obama’s reelection is no sure thing.

Against this sordid world of bourgeois politics whose crisis only continues to deepen, revolutionaries pose the class struggle. For all those who seek a more humane and rational world, the path there does not lie through the institutions of the bourgeois state, bourgeois politics and bourgeois legalism. Only the collective struggle of the working class and all the exploited across the globe can point the way forward for humanity today.

Henk 6/7/12



[1] Arizona’s law was only the tip of the iceberg, as a number of other red states had passed anti-immigrant laws of their own. Alabama’s law was probably even more draconian than Arizona’s, making it illegal for anyone to knowingly assist an illegal immigrant in even the most banal of ways, such as giving them ride in one’s automobile.

[2] See our article, “Obamacare: Political Chaos for the Bourgeoisie, Austerity for the Working-Class” Available at: http://en.internationalism.org/internationalismusa/201205/4927/obamacare-political-chaos-bourgeoisie-austerity-working-class

[3] The significance of the decision to uphold the law on taxing authority rather than through the commerce clause is not yet clear. However, it has caused some anxious political moments for all sides as they struggle to explain the difference between a “tax” and a “penalty.”

[4] Of course, if the leaks emerging from the Court about the decision process on Obamacare are true, it is hard not to see Roberts’ actions as a real capitulation to political pressure, rather than pure jurisprudence. What could be more political than changing one’s legal analysis based on public opinion?

[5] Not even any of George W. Bush’s cabinet members were ever held in contempt of Congress, despite strong suspicion by many that certain cabinet members were guilty of war crimes and other gross violations of the law.