Supreme Court resuscitates health care act

The U.S. Supreme Court, to the surprise of many, validated the Affordable Care Act Thursday. The 6-3 decision held that it was not the intent of Congress to limit subsidies for health care premiums to only those states with state health exchanges. Residents of states without exchanges, who had to go to the national health exchange to get coverage, would continue to receive subsidies under the ACA. Chief Justice John Roberts provided a key vote and wrote the majority opinion.

Ironically, then-Sen. Barack Obama had voted against Roberts' nomination to the Supreme Court. Now Roberts has twice saved Obama's signature legislation. Three years ago, Roberts' perception of the statutory penalties for not buying health insurance as a tax saved the ACA.

Republican opponents of the ACA immediately jumped on Thursday's decision, declaring that the ACA was "broken" and would have to be repealed in its entirety. None of the GOP spokesmen explained how the legislation was "broken," which seemed to be an odd description considering the millions of people who have signed up and who are receiving health care insurance because of the 2009 legislation.

Republicans may get their chance at repealing the bill if they retain control of Congress and can win the presidency. Congress has taken dozens of votes to repeal the act, but none of them have taken effect because they could not pass in the Senate or because President Obama would veto the repeal if it ever passed Congress.

A controlling majority in the Senate and continued control in the House could make it possible for repeal legislation to pass after the 2016 election. If voters put one of the dozen or more GOP presidential candidates in the White House, then the ACA could be repealed without threat of veto.

But would GOP leaders really go that far? Already millions of Americans are depending on the ACA for health care coverage. Repealing the act would revoke their health insurance, and that would certainly pose a political risk for the party responsible for taking away a benefit Americans want and need, especially if the GOP has no alternative legislation — only a vitriolic hatred of "Obamacare."

Court gives Voting Rights Act a reprieve

The U.S. Supreme Court dodged a valid constitutional issue Monday, and the civil rights establishment dodged a bullet. The court ruled, 8-1, that a utilities service district, which did not exist in 1965 but was nonetheless subject to the 1965 Voting Rights Act, could ask to be exempted from the law. Therefore, the court need not decide whether the Voting Rights Act's punitive provisions were constitutional.

This narrow ruling saves the VRA from a constitutional test that it almost certainly would lose. The challenge to the 44-year-old law by the Northwest Austin Utility District created a perfect vehicle for testing the constitutionality of the Voting Rights Act. It seemed clear at oral arguments that a majority of the court doubted the constitutionality of the law, but the court's conservatives, except for Justice Clarence Thomas, were reluctant to strike down a law that has transformed American elections (see Barack Obama, 2008). It seems likely that this reprieve for the VRA was the work of Chief Justice John Roberts, who wrote the majority opinion signed onto by conservative and liberal justices.

Section 5 of the law presents several problems. The law singles out several electoral districts (whole states or individual counties, mostly in the South) for special treatment. These electoral districts must pre-clear any changes in election laws or procedures through the U.S. Justice Department. This singling-out conflicts with the equal protection clause of the 14th Amendment, the very clause upon which much civil rights legislation is based. The law also usurps the authority of the states to determine their own election procedures, as specified in the Constitution.

The most glaring problem with Section 5 is that it pretends nothing has changed since 1964. The affected jurisdictions are those where minorities were under-represented in voter registration in 1964. When Congress reauthorized the Voting Rights Act for another 35 years in 2006, it did not re-examine voter registration to determine which jurisdictions were discriminating against minorities. It used the 42-year-old voter statistics from 1964. Anyone who thinks electoral politics in the South has not changed since 1964 is disconnected from reality.

With its diplomatic decision not to rule on the constitutionality of an iconic landmark of civil rights, the court has given the Voting Rights Act a reprieve, but Congress should take the hint and revise the VRA. Its provisions for ensuring fair and open voter registration and voting should remain, but its pre-clearance provision should be revised to reflect current conditions, not the long-buried statutory segregation of the 1960s. Pre-clearance was designed as a means of punishing those states and other jurisdictions that refused to open the voting process to minorities and that built fanciful new obstacles each time an old obstacle was struck down. At the time, such punitive measures were probably justified, but they aren't today. Those jurisdictions are now electing minority sheriffs, commissioners, legislators and members of Congress. In many cases, minorities now control the reins of power.

The VRA includes a "bailout" provision for jurisdictions that are no longer discriminating, but that provision has been narrowly interpreted. Wilson County is subject to pre-clearance, and when I asked 25 years ago why the county, which had elected minorities at-large, did not apply for bailout, I was told that the procedure was hopeless and any effort would be futile. Since 1965, I have read, only 17 jurisdictions have successfully sought bailout.

The VRA, which has been called the most effective civil rights legislation in history, today has a primarily symbolic purpose. If Congress wants to keep that symbol in place, it must revise the law to comply with the Constitution and with simple logic before the Supreme Court has another opportunity to consider the law's constitutionality.