The Republic | azcentral.com
With the U.S. Supreme Court's approval last week, the Affordable Care Act entered an elite canon of laws that have rewritten the social contract between American citizens and their government.
They include the Social Security Act of 1935, Civil Rights Act of 1964, Voting Rights Act of 1965 and the amendment to the Social Security Act that created Medicare and Medicaid, also in 1965.
Each added or altered social protections for large groups of Americans, but not without passionate debate and fierce constitutional challenges.
While the Affordable Care Act's ultimate place in history has yet to be determined, historians and legal scholars said if the past is a guide, the legislation will eventually become an accepted part of American society.
The health-care law "will have implications for tens of millions, including 30 million who will get access to health insurance and many more millions that will be affected by insurance-regulation reforms," said Lawrence Jacobs, a political-science professor at the Humphrey School of Public Affairs at the University of Minnesota.
Upheld Thursday by the Supreme Court in a 5-4 decision, it requires almost everyone to obtain health coverage and guarantees it will be available to those previously uninsured or uninsurable.
Jacobs said the scope of the program places it in the same league as the programs of President Franklin D. Roosevelt's New Deal and President Lyndon B. Johnson's Great Society.
"The Supreme Court has signed off on a piece of legislation that is as sweeping and perhaps more sweeping than any social-welfare legislation in half a century and perhaps since the New Deal," said Jacobs, co-author of the 2010 book "Health Care Reform and American Politics: What Everyone Needs to Know."
"The number of people impacted by this health policy is enormous," he said. "It really opens a new day for financing and delivery of health care."
As with the health-care legislation, the Social Security Act's path into law was by no means assured when Roosevelt signed the act on Aug. 14, 1935.
The act provided financial benefits to retirees and the unemployed, along with a lump-sum benefit at death.
Payments to retirees were to be financed by a payroll tax, split 50-50 between workers and employers. The act also called for allocation of money to states to assist the elderly, unemployed, families with dependent children, maternal and child welfare, public-health services and the blind.
Despite broad popular support and passage by overwhelming majorities in the Senate and House of Representatives, the law quickly faced no fewer than three Supreme Court challenges attacking its two principal components.
According to a historical account from the U.S. Social Security Administration, Roosevelt and his advisers had serious doubts whether the court would deem constitutional either Social Security's old-age insurance or unemployment-compensation programs.
The court had in prior years struck down legislation to broaden the federal government's authority to impose social regulations on the states, including a handful of early New Deal programs, such as the Railroad Retirement Act of 1934, which established a mandatory retirement plan for railroad workers, and the National Industrial Recovery Act of 1933, which authorized the president to impose codes of fair competition on various trades or industries at the request of trade associations. In both cases, the court's majority ruled the laws were attempts to disguise social regulation as commercial regulation.
Both were struck down in 1935, the same year Social Security was signed into law.
By 1937, however, the Supreme Court's majority had begun to espouse a more liberal view of constitutional federalism, said David Gartner, associate law professor at Arizona State University's Sandra Day O'Connor College of Law.
The reason behind what is referred to as the court's "switch in time" isn't entirely known.
Gartner said it's likely the justices were responding to a combination of public criticism over previous decisions and threats by Roosevelt to replace them through proposed legislation known as "court packing." The idea was to add a new member to the court for every justice over 70 years old with at least 10 years on the court, which at the time included six of the nine Supreme Court members.
The court-packing bill failed in Congress, but it's possible it influenced the justices' opinions, Gartner said.
Whatever the reason, the Supreme Court upheld the old-age insurance and unemployment-compensation provisions of Social Security in decisions handed down on May 24, 1937.
While the New Deal was an attempt to rescue the economy and Americans from financial disaster through federal spending programs, Johnson's Great Society was a broad effort to revive post-World War II prosperity while putting an end to poverty and racial inequality.
Spurred on by the ideals of his assassinated predecessor, President John F. Kennedy, Johnson set out to pass a number of landmark social-welfare initiatives, including the Civil Rights Act, the Voting Rights Act, and establish the Medicare and Medicaid federal health-insurance and benefits programs.
Perhaps the most contentious of those was the Civil Rights Act, an attempt to codify the demands of the civil-rights movement in federal law. It prohibited many forms of race and gender discrimination, including racial segregation and discriminatory application of voter-registration requirements.
It also outlawed racial segregation in schools, many workplaces and by institutions that served the general public.
Before Kennedy's death, Johnson, a former U.S. senator from Texas, was not regarded as a champion of civil rights and had in fact worked behind the scenes to help defeat a previous civil-rights bill in 1957.
However, Johnson's political maneuvering and back-room dealing less than a decade later, which included threats and coercion to garner the votes to break a Senate filibuster and pass the 1964 act, is legendary.
Initially, Johnson worked with then-Senate Majority Leader Mike Mansfield to exploit a procedural technicality and prevent the bill from being referred to the Senate Judiciary Committee, where it almost surely would have died.
Still, a bloc of 18 Southern Democratic senators, including Strom Thurmond of South Carolina and Richard Russell of Georgia, launched a filibuster on the Senate floor to prevent its passage.
"We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states," Russell told the Senate.
After a 57-day stalemate, Johnson's efforts to secure favorable votes succeeded, the filibuster was defeated and the Civil Rights Act passed in the Senate, 71-29.
Passage caused an uproar in Southern states, where white residents were accustomed to racial segregation and the repression of blacks.
Attempts to strike down the law included two Supreme Court challenges in 1964, including Heart of Atlanta Motel vs. United States. The court's landmark decision in the case found in favor of the federal government, arguing that Congress could use the Constitution's Commerce Clause to force private businesses to adhere to the Civil Rights Act.
Entering the 1960s, voting-rights activists were fighting discrimination. Some state and local governments used literacy tests, poll taxes and intimidation through groups such as the Ku Klux Klan to keep minorities from voting.
After the murder of several voting-rights activists, and an attack on peaceful protesters by Alabama state law-enforcement officers in March 1965, Johnson called for a law to rectify the situation.
The law, which echoed the 15th Amendment's prohibition on restricting a person's right to vote based on race, had provisions targeting places where discrimination at the polls was most rampant, including most Southern states, Arizona, Alaska, and certain counties in other states. Those jurisdictions could not make voting-law changes until they were approved by the U.S. attorney general or District Court in Washington, D.C., to ensure that they did not discriminate.
The act also prohibited most literacy testing, especially in places with low voter registration. The law didn't prohibit poll taxes but directed the attorney general to challenge them in court, where they eventually were defeated.
The Supreme Court upheld the Voting Rights Act in 1966 in the case South Carolina vs. Katzenbach.
Theodore Roosevelt endorsed national health insurance in 1912 as part of the Progressive Party platform, but it wasn't until 1965 that medical coverage for the elderly and poor gained passage.
In the 1930s, during the Great Depression, Franklin Roosevelt supported national health insurance, and Harry Truman, his successor as president, helped develop the concept of guaranteed hospital care for those on Social Security.
Medicare is an insurance program serving mostly those older than 65, regardless of income, as well as younger people with disabilities and dialysis patients.
Kennedy and Johnson both backed the measure, according to accounts from the Centers for Medicare & Medicaid Services.
Demographic changes helped spur passage. Between 1950 and 1963, the elderly population grew from about 12 million to 17.5 million, and the cost of hospital care rose about 6.7 percent a year, several times the annual increase in the cost of living, according to the Social Security Administration.
By 1964, only half of senior citizens in the U.S. had insurance for hospital care, and many lived in poverty with untreated illnesses.
With Democrats in control of both houses of Congress, Johnson got it passed. "We marvel not simply at the passage of this bill," Johnson said at the 1965 signing ceremony. "What we marvel at is that it took so many years to pass it."
Medicaid, the federal-state assistance serving low-income people of all ages, was well-received. In the first three years of the program, which is funded by a tax on the earnings of employees, matched by contributions by employers, nearly 20 million people enrolled, according to the Social Security Administration.
A Harris Poll conducted in March 2011 found that Medicare tied with crime fighting as most popular of government services, with 88 percent supporting the program. Social Security received 85 percent support, with Medicaid receiving 74 percent support.
As was the case with major social regulations that preceded it, the Affordable Care Act is unlikely to gain acceptance from a majority of Americans for years, public-policy analysts say.
Still, the challenges to repealing and replacing it are large enough that the act likely is here to stay, said John Ellwood, a professor at the Goldman School of Public Policy at the University of California-Berkeley.
Ellwood said the health-care act is unpopular with many, but Republicans will have a difficult time replacing it with anything substantially different.
"Most Americans are satisfied with their health insurance or scared to death you are going to take it away from them," he said. "Regardless of where you are on this issue, so far (the act) has not sold very well to the American people. Folks on the right see this as an expansion of government and they don't like that, and they don't see how it helps them (because they mostly already have coverage)."
However, he said that polling shows some people don't like it because they want an even more liberal, single-payer plan. When those people are counted as supporting the measure, the breakdown of supporters to detractors is closer to 50-50, he said.
When Social Security was enacted, it was an easier sell because it was a totally new program, people got benefits and the tax rate was extremely low, Ellwood said.
"It was equally divided in Congress ... but people received benefits without paying higher rates," he said. "It was incredibly popular in the beginning."
Repealing the health-care law is unlikely without a Republican sweep giving them control of Congress and the presidency, Ellwood said.
"This is why it was so hard to put it through in the first place," he said. "This has been the left-wing dream since Teddy Roosevelt. Franklin Roosevelt refused to make it a part of Social Security because he knew it would fail. Kennedy and Johnson didn't even try (to pass it), and (Johnson) did Medicare/Medicaid instead. Carter tried and failed. Nixon tried and failed."
Another obstacle to its repeal is that many people favor significant portions of the law, just not the individual mandate requiring uninsured people to buy insurance.
"They hate the mandate, and love everything else," Ellwood said. "They don't see that without the mandate, everything else falls apart, unless you run up huge deficits. That is why the mandate was key."
Fundamentally, even though many people support most elements of the act, such as not allowing insurance companies to drop them as readily, they don't like government requirements, he said.
"Fear of the government is just embedded in American psyches," Ellwood said.
Reach the reporter at craig.anderson@arizonarepublic.com or 602-444-8681.
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