Obamacare upheld: What it means now and in the future
Challenging Obamacare on constitutional grounds was never what anyone on the right wanted to rely on as a Plan A. “Repeal and replace,” the mantra of conservatives since Congress approved the health-insurance overhaul in 2010, is a high bar requiring the election of a president and congressional majorities dedicated to taking Obamacare off the books and passing more sensible reforms in its place. But persuading the Supreme Court to void the law by declaring it beyond Congress’ power to regulate interstate commerce, while sincerely believed to be correct, was always a higher bar to clear.
The irony is that we cleared the higher bar, and have nothing to show for it.
Do not confuse this for spin: Barack Obama and the Democrats won a clear policy victory today in seeing the court uphold their health law. There’s no denying that. Any other outcome would have been a debacle for them. This is the opposite of a debacle. That would be a victory.
That said, five of the court’s nine justices just agreed that compelling individuals to enter the market for a private company’s product does not fall within Congress’ power to regulate interstate commerce. This is the very idea to which then-Speaker Nancy Pelosi responded, when asked about it by a reporter two years ago, “Are you serious? Are you serious?” So, this is a remarkable moment given the last 80 years of Supreme Court jurisprudence and an important limit on federal power. In those terms, it looks like a legal win going forward for conservatives.
Unfortunately, Chief Justice John Roberts sided with the court’s four liberal justices and bought the Obama administration’s tortuous argument that the consequence for failing to comply with the mandate to buy health insurance was a “tax” — even though the president himself, during the debate about the law, repeatedly denied it was a “tax”; even though, as noted in the main dissent to the ruling, Congress rejected a version of the law that called for a “tax” as a penalty; even though Congress chose to use the word “tax” elsewhere in the law but not in reference to the penalty for failure to meet the mandate; even though the court’s majority decided it wasn’t a “tax” for purposes of the Anti-Injunction Act; and even though, again from the dissent, there are multiple instance of the federal government’s using its taxing apparatus to collect penalties that cannot possibly be considered “taxes.”
Judge for yourself whether it was judicially modest of the Roberts court to find any avenue possible to defer to the legislative branch, or judicially immodest to ignore Congress’ contradictory words and deeds in locating that avenue somewhere down a rabbit hole. No prizes for guessing where I stand.
My initial reaction to the taxing-power argument was that it pretty much offset any gain from the newly defined limit of Congress’ Commerce Clause powers. I am still not comforted by the court’s reasoning that Congress can tax someone for not buying something. And I am dismayed that Roberts not only justified this reasoning by comparing “not buying insurance” to “buying gasoline” or “earning income,” but also suggested a new tax Democrats could constitutionally try: a $50-per-household tax for not having energy-efficient windows. (Talk about getting kicked while you’re down.)
The more I think about it, however, all that is no more dismaying than knowing Congress can also decide to tax as much of a person’s income as it wants. The only thing standing in the way is the will of the people.
Which brings us to the biggest takeaway from today’s ruling. If Obamacare is to be reversed, it will have to be done by elected officials acting on the will of the people.
And that means it may not be a political victory for Obama.
It might be, of course. The prospects of re-electing Obama and/or keeping a majority in at least one chamber of Congress, and thereby keeping the law on the books, must be less daunting than trying to enact a new, similar (or even more far-reaching) health law. And while Obamacare is unpopular, there is a chance public opinion will shift in its favor now that the court has ruled. If so, that would boost Obama.
But there are other reasons it may hurt him: The intensity of Obamacare opponents will ratchet back up — remember how fired-up people were during the townhall meetings of 2009? If they have any political acumen whatsoever, Republicans will remind voters over and over again that Democrats sold the law as one thing (not a tax) only to win in court by saying something else (it’s a tax). Expect to see clips like this one and this one in GOP ads early and often.
Of course, the big question will be whether Mitt Romney is the one to capitalize on an issue like this, given his record on health reform (”Romneycare”) as governor of Massachusetts. I see two good ways for him to do it: First, frame the issue in part as an element of tax reform, and the need to get rid of a federal tax code that seeks to compel Americans to behave certain ways in exchange for one that gets government out of private individuals’ personal decisions and taxes only as much as it needs, without prejudice.
Second, to lend credibility to his promise to lead efforts to repeal Obamacare and replace it with something better, Romney should choose a running mate who can speak credibly about the issue. And in my mind, no one fits that description better than Louisiana Gov. Bobby Jindal.
– By Kyle Wingfield
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512 comments Add your comment
Love me some Reagan
June 28th, 2012
4:53 pm
Kyle
Get a column out there on the Holder contempt vote
Need to rile the base and rally the troops
AmVet
June 28th, 2012
4:53 pm
Streetracer, what if there were no rhetorical questions?
LOL!
Calm down, Alice. You’re not going to have to buy a Prius!
Michael H. Smith
June 28th, 2012
4:53 pm
Oh but federal government can make you do anything it wants to make you do by means of taxation. It is now the law of the land Comrade.
Richard
June 28th, 2012
4:56 pm
Kyle,
Just a thought, but if the Fair Tax was passed, would that instantly make Obamacare void?
Jefferson
June 28th, 2012
4:57 pm
Only a candyass would let the gov’t tell them what kind of bread to eat, that’s the doctors job.
Don Abernethy
June 28th, 2012
5:00 pm
Too bad there is not another country with a good constitution, conservative thinking, and high morals to move to.
This is a sad day for America. It is only a matter of time before we become just like Syria.
Love me some Reagan
June 28th, 2012
5:03 pm
Kyle
Better yet, save the contempt vote article for tomorrow. Your right leaning regulars will need more than just caffeine to get them out of bed in the morning
Canary
June 28th, 2012
5:04 pm
You have to buy car insurance or you don’t drive. You have to pay for roads through a gas tax. If you let a huge % opt out (free load) , the rest can’t afford car insurance and we won’t have any decent roads.
John
June 28th, 2012
5:08 pm
Mitt Romney is jumping on the Obama raised taxes bandwagon. Someone needs to remind him that when he points his finger there are 3 pointing back at him. Didn’t he also raise taxes when he signed into law RomneyCare? Guess he broke his pledge to never raise taxes.
Kamchak ~ Thug from the Steppes
June 28th, 2012
5:08 pm
…but if the Fair Tax was passed…
Is that the same FairTax that can’t even get out of committee regardless of which party chairs it?
That FairTax?
AmVet
June 28th, 2012
5:08 pm
Don,
America. Love It or Leave it.
(I always wanted to throw that one right back in the face of the right wing faketriots.)
Not that I really give a rat’s ___ but I wonder exactly how many times this week that Tiberius the Hatefully Prescient One prognosticated that this legislation would be overturned.
LOL…
JDW
June 28th, 2012
5:09 pm
“And within less than four hours of the decision, the presumptive nominee’s (Romney’s) campaign had raised $1 million from online contributions.”
Sounds like contributions are slowing down as they raised an average of $2.4 million a day last month.
davetv
June 28th, 2012
5:09 pm
Finn, you tried to answer a question I didn’t ask. Tell me why would insurance companies choose to lower rates because everyone is forced to buy their product. Logical people would see that as a reason to raise the price of your product.
AmVet
June 28th, 2012
5:09 pm
Guess he broke his pledge to never raise taxes.
Flip done flopped…
JDW
June 28th, 2012
5:10 pm
@davetv…”Tell me why would insurance companies choose to lower rates because everyone is forced to buy their product.”
Because the law forces them to spend at least 80% of every dollar on care and some of them don’t do that.
Streetracer
June 28th, 2012
5:11 pm
Canary:
But that is State Law, not federal. If you don’t like it, you can move to another state where you might like the laws better.
AmVet:
Why can’t the government make someone buy a Prius?
dabir dalton
June 28th, 2012
5:11 pm
Kyle if the GOP had something better then Obamacare – other then allowing those without health care to die – conservative pundits such as yourself and republican politicians would have revealed it by now.
Michael H. Smith
June 28th, 2012
5:14 pm
Why can’t the government make someone buy a Prius?
Because Toyota is non-union, so you will be force to buy a Chevy Volt.
John
June 28th, 2012
5:15 pm
Kyle,
Given your position in what you wrote, do you believe Mitt Romney broke his anti-tax pledge he signed?
Kyle Wingfield
June 28th, 2012
5:15 pm
dabir dalton @ 5:11, and everyone else who plays the “GOP has no plan” card: I personally have written about a few alternatives, most recently here and here.
If that’s not enough, here’s a 27-page document listing the health-related bills introduced since January 2011 alone.
Ignorance doesn’t make it so.
Old Timer
June 28th, 2012
5:18 pm
Anyone want to make book on how many of Pelosi and Ree’s diciples get voted out this time? Even if Obama gets rel-elected they can keep his hands tied from more distruction of this country. As mention before I have lived through 13 Presidents and Obama is the worst–he makes Jimmy Carter look good-if his methods continue I feel sorry for the future of this country and our kids and grandkids. It won’t work–that is one of the reasons he is pushing Articel 21 of the National Nations. You folks that love Obama will eventually get your due and wonder why it is too late. Putting a degree in socialology, government or accounting won’t float in the coming enviroment. A degree in common sense might help some.
Michael H. Smith
June 28th, 2012
5:18 pm
dabir dalton
June 28th, 2012
5:11 pm
We conservatives have revealed better healthcare alternatives many times over but unfortunately not everyone supposedly on our side is with that program. Possibly that will change.
John
June 28th, 2012
5:20 pm
davetv,
Understand that law…80% of the money collected through insurance premiums must go directly to healthcare, 20% to administration cost, etc. If less than 80% goes directly to healthcare, then the insurance companies must make refund payments back to the consumer.
davetv
June 28th, 2012
5:21 pm
JDW. Covering everyone with pre-existing conditions ought to help eat up that 80%. Plus all the new taxes and regulations on medical supplies and drug companies. I bet insurance companies can hardly wait to start dropping their rates – not.
Aquagirl
June 28th, 2012
5:22 pm
It won’t work–that is one of the reasons he is pushing Articel 21 of the National Nations.
Just when you thought cons were fresh out of conspiracy theories….I guess the spot for paranoia in your brain is very close to the one for creativity.
AmVet
June 28th, 2012
5:22 pm
Why can’t the government make someone buy a Prius?
Because it doesn’t help Northrup Grumman, Raytheon, AIG or CitiGroup?
davetv
June 28th, 2012
5:22 pm
Plus all the people who don’t have to actually pay for their insurance will be running to the doctor for every hang-nail or sniffly nose.
Rafe Hollister, s avalancheuffering through Oblamer's ineptocracy
June 28th, 2012
5:25 pm
Heard a great analysis by of all people Greg Gutfield, on Fox. He said Obama wrote a bad term paper and turned it in for a grade. Rather than give him the “F” he deserved, Roberts rewrote the paper for him and gave him an “A”. We all now suffer, thanks Justice Roberts.
Michael H. Smith
June 28th, 2012
5:26 pm
Plus all the people who don’t have to actually pay for their insurance will be running to the doctor for every hang-nail or sniffly nose.
hmmm…. does it kinda remind you of Medicaid or the abuse of emergency humanitarian medical aid?
killerj
June 28th, 2012
5:27 pm
America is headed for a scary future.
Love me some Reagan
June 28th, 2012
5:28 pm
Haven’t heard Palin opine (WHINE) yet………….. bet she need a fainting couch
Fox will be great comedy tonight. Was watching earlier. It was a HOOOOOOOOOOOOOOOOOOOOT
Rafe Hollister, s avalancheuffering through Oblamer's ineptocracy
June 28th, 2012
5:30 pm
Logical people would see that as a reason to raise the price of your product.
davetv
You are right, captive audience, required to purchase a product, what incentive is there to lower your price. Kinda like cable TV, accept there is no law requiring you to purchase cable, yet, but they know you aren’t going anywhere so they raise the price.
John
June 28th, 2012
5:31 pm
davetv,
From Forbes…
“…Health and Human Services Secretary Kathleen Sebelius announced that 12.8 million Americans would benefit from $1.1 billion in rebates.”
“Basically, the rule requires insurers to spend 80 percent of premium dollars on medical care and quality improvement. Those that do not must provide policyholders the difference in the form of a rebate.
Sebelius estimated each family covered by a policy would receive an average rebate of $151 across all markets.
The average rebate per family is expected to be $152 in the individual market, $174 in the small group market (small businesses) and $135 in the large group market (corporations), the government said.”
Rafe Hollister, s avalancheuffering through Oblamer's ineptocracy
June 28th, 2012
5:32 pm
Love Reagan
Obama lied, Freedom died. (Sarah Palin)
Cutty
June 28th, 2012
5:34 pm
It’s enjoyable watching Wingfield and the rest of the cons stew like they lost their favorite blankey. Obama never called ACA a tax, Roberts defined it as such. It’s also ironic that the cons are so against a policy that they developed. Went from raging about it being constitutional, to it being a tax instantaneously. They had their talking points ready.
Republicans will never replace ACA with anything. Just smoke and mirrors to get votes. Kyle says that this may not be a political victory for the President, EVEN THOUGH it is. And what does Kyle know about anything, he voted for Newt.
Rafe Hollister, s avalancheuffering through Oblamer's ineptocracy
June 28th, 2012
5:35 pm
Holder in contempt, civil and criminal. 21 Dems join GOP.
John
June 28th, 2012
5:36 pm
davetv,
From the Shreveport Times…
“Health insurance companies must refund $4.1 million to Louisiana residents by Aug. 1.
The refunds are part of the federal Affordable Care Act. Insurance companies that spend less than 80 percent of premiums on medical care and quality must refund part of the premiums.”
From the Orlando Sentinel…
“1.3 million Floridians can expect a rebate from their health-insurance company this summer, according to a report released Thursday from the Department of Health and Human Services.
In all, health-insurance plans will pay out $124 million in rebates to 736,000 Florida households by Aug. 1. The refund, which averages $168, comes courtesy of the health-care overhaul that took effect last year.”
AmVet
June 28th, 2012
5:38 pm
Roberts rewrote the paper for him and gave him an “A”.
Stupid. But then those faketriot Bushbots at Fox never did have much respect for the law of the land.
Speaking of stupid:
From Rush Limbaugh:
”The chief justice was hell-bent to find a way to make this law applicable, so he just decided, you know what, as a tax increase, it works, because there’s no limit on the federal government’s ability to tax….Even when they don’t ask for it, the Supreme Court is gonna find a way to make what they want to do legal because John Roberts said it’s not our job here to forbid this. It’s not our job to protect people from outcomes.”
I’ve always loved the fervor with which the fake conservatives can quickly round up a circular firing squad.
Now it’s time to add cannibalism to their curriculum vitae…
davetv
June 28th, 2012
5:40 pm
John, I question anything Sebelius says. They all sugar-coat everything. I imagine there will be an awful lot of stuff that will be considered “quality improvement”. Insurance prices will go up.
Lil' Barry Bailout (Unexpectedly Revised Downward--Again)
June 28th, 2012
5:40 pm
John
June 28th, 2012
5:36 pm
————————–
Parasites just loves gettin’ a check in the mail!
AmVet
June 28th, 2012
5:41 pm
Parasites just loves gettin’ a check in the mail!
Hey! Lay off of the mega-corporations, OK?
Old Timer
June 28th, 2012
5:42 pm
Aquagirl you need to get informed. I attended a meeting today with emergency management people in our county and they were trying to get us to sign off on it–You might read it and find out what it says before you critize. Kyle you could do a few columns on the proposal.
Lil' Barry Bailout (Unexpectedly Revised Downward--Again)
June 28th, 2012
5:43 pm
AmVet: Hey! Lay off of the mega-corporations, OK?
———————-
If you have a problem with mega-corporations, don’t do business with them.
Oops, you no longer have that option!
Thanks, liberal fascists.
davetv
June 28th, 2012
5:44 pm
This is a great day for America. A final wake-up call that we’ve given up our liberties to an all-powerful federal government. Tyranny will not stand.
AmVet
June 28th, 2012
5:44 pm
THAT is your excuse for them being parasites???
Otay…
JDW
June 28th, 2012
5:45 pm
@Davetv…”I bet insurance companies can hardly wait to start dropping their rates – not.”
I don’t expect to see rates go down. I do expect more access, at fairer price points and slower rate of increase. You have to remember that less than 20% of insurance is individual. All other forms already cover existing conditions with no extra premium. Now you are going to make the pool bigger and spread the risk. That bit is not going to cause big increases.
Filter
June 28th, 2012
5:45 pm
Kyle,
If the mantra “repeal AND replace” fits then what is the right’s proposal for the replacement.
I have heard an awful lot about repeal but as for replace….not so much (outside of the word itself).
AmVet
June 28th, 2012
5:45 pm
davetv,
I suspect that the sale of fainting couches is going through the roof as I write this…
Rafe Hollister, s avalancheuffering through Oblamer's ineptocracy
June 28th, 2012
5:45 pm
Sounds like they were smart enough to try to get the folks addicted to rebates, kinda like a drug dealer offering a few free magic crystals to a potential meth head. A tried and true endeavor that works most every time.
Bob Baldwin
June 28th, 2012
5:46 pm
To bad the Republicans didn’t implement all those healthcare ideas when they had the helm.
At least they’re concerned now. I only wish they had even introduced some of those ideas. If they did, I don’t remember hearing much about it.