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