While I was away, the Senate passed a health-care bill; you may have noticed. Ever since, there’s been lots of talk about whether the House and Senate might be unable to reach a compromise combining their respective (and very different) bills; talk about legal challenges to various provisions of the bill; and talk about Republicans running in 2010 and 2012 on a pledge to repeal the legislation.
I’m not getting my hopes up for any of these options. We’re going to be stuck with this monstrosity for a long time — most likely until it sends the federal government into bankruptcy, as this bill, along with the slow-motion fiscal train wrecks of Medicare and Social Security, will inevitably do.
The talk about the House and Senate having difficulty resolving their differences strikes me as political theater. Are there liberal House members who are reluctant to vote for a bill without an explicit public option, which will probably be necessary in any compromise with the Senate? Certainly. Will there be very public pressure from liberal interest groups not to settle for what they perceive to be a watered-down version of reform? Yep.
But most of this liberal outrage will be either manufactured or very easily assuaged. It will be manufactured in an attempt to persuade Americans that this truly is a centrist approach, rather than the first, irreversible step toward a government takeover of health care. And the liberals who are genuinely disappointed with it will be easily assuaged precisely because they know deep down that this is the first, irreversible step toward a government takeover of health care.
Legal challenges don’t offer that much hope, either. A lawsuit about the payoff that Sen. Ben Nelson [name corrected from earlier draft -- KW] got for Nebraska in exchange for his vote, as several state attorneys general reportedly are mulling, will be of little use. The payoff isn’t central to the bill and could be easily excised without affecting its substance. (Nelson has suggested he might be willing to drop the payoff as other senators come to realize they could have gotten billions for their own states.) And, most practically, any such challenge would come before a court well after the votes had been counted in Congress, which was the only reason the payoff was made in the first place.
A challenge to the constitutionality of a mandate for individuals to purchase health insurance might have a somewhat greater chance of success, and would be somewhat more central to the substance of the reform. But this, too, strikes me as ultimately unhelpful. The mandate was included as a practical counterpart to the elimination of pre-existing conditions; without it, people would simply wait until they were sick before purchasing health insurance. While I’m no legal or legislative expert, it seems quite possible that the mandate could be struck down without affecting the pre-existing conditions provision — which only means that premiums would continue to rise for those people who did buy insurance.
Many lawyers will be working on other, potentially more successful angles. And it definitely would be fitting if this bill about health care, a market which has been significantly skewed by an abusive and unrepentant trial bar, were to be held up by lawsuits. But I have yet to see a winning idea.
That leaves a GOP pledge to repeal the bill, which I find the least promising option out there.
For starters, there is virtually nothing the Republicans could do to this bill in 2011-12. Practically speaking, the GOP’s best hope in next year’s election is to win back a very narrow majority in the House and to reduce the Democrats’ majority in the Senate. That is not the stuff of which repeals are made. And even if they somehow could repeal the law, President Obama would still be around to veto the repealing legislation.
There will be too many other subjects in the 2010 election — the economy, chiefly, and perhaps a major national security/foreign policy crisis — for it to be about the single issue of repealing the health reform. By the 2012 presidential election, if not by next November, I would expect too many voters to consider the health reform, even if they dislike it, a closed case that they’d rather not reopen.
So I am pessimistic both about this reform — which will redefine the term “unintended consequences,” given its sweeping nature and the secrecy in which it has been crafted — and about the chances of undoing it. There may be some space for unwinding it a bit, improving it at the margins. But there is a reason why the left has pushed so hard, so long, to take over health care. This is a permanent realignment of government’s relationship with the governed, and I seriously doubt the governed are going to like what we get.