op-ed

Obamacare: Down, but by no means out

Dean Clancy Partner, Adams Auld LLC
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Yesterday, a federal judge in Florida declared unconstitutional Obamacare’s mandate that all Americans purchase health insurance — the linchpin of the unpopular law rammed through last March by congressional Democrats. If the mandate is ultimately struck down by the Supreme Court, Obamacare will unravel and Congress will have little choice but to reopen the Patient Protection and Affordable Care Act for amendment. That would enable us to reverse the government takeover and adopt a patient-centered approach.

Also yesterday, all 47 Senate Republicans came out in support of Sen. Jim DeMint’s bill to fully repeal Obamacare. This means that every single congressional Republican, House and Senate, is now on record in favor of full repeal. As for the Democrats, only three House Democrats are on board, having voted in favor of the full repeal bill when it passed the House two weeks ago. No Senate Democrat has endorsed full repeal . . . yet.

It is hard to see how a major piece of social welfare legislation that is supported only by members of one political party (the Democrats) and opposed by 100% of the other party (the Republicans) — and also opposed by 60% of the American people — can stand.

And yet, while Obamacare may be on the ropes, it is far from down for the count. There are three reasons that Obamacare may be able to survive.

First, it’s the law. Laws are hard to change, even unpopular ones. That puts its supporters in a good defensive position. If they can hold out long enough — say, until 2013 — public opposition might (they hope) soften and the united Republican front might crumble.

Second, at least for now, Senate Democrats remain united in favor of the law. While Harry Reid and his 52 fellow Senate Democrats are “surrounded,” as it were, they still appear to have the votes to block full repeal from getting to President Obama’s desk. That may — and must — change. But for now, it’s a fact that Reid appears to have 53 votes, while Obamacare opponents have only 47. It will take 60 to put the bill on Obama’s desk. That’s doable, but not easy.

Third, the Supreme Court might very well uphold the law. It’s far from certain that yesterday’s sweeping decision by federal judge Roger Vinson in Florida will be upheld on appeal. While he and his fellow judge Henry Hudson in Virginia have both found the individual mandate to be unconstitutional, two other federal courts (one in Virginia, one in Michigan) have ruled the opposite way. (Judge Vinson’s decision goes beyond that of Judge Hudson, striking down not just the individual mandate but the entire Patient Protection and Affordable Care Act. While I personally find Vinson’s reasoning persuasive, higher courts, even if they follow him on the mandate, may hesitate to go with him all the way.)

Nor can we assume, as many commentators currently seem to be doing, that the whole decision will end up being decided by the Supreme Court’s “swing” vote, Justice Anthony Kennedy. That’s only true if one assumes that all four of the Court’s “conservatives” (Scalia, Thomas, Roberts, and Alito) follow the Hudson-Vinson reasoning on the mandate. (I assume the four progressives — Ginsburg, Breyer, Kagan, and Sotomayor — will all reject that reasoning, even though doing so will mean that we have, in effect, a completely unlimited federal government that in principle can order us all to stand on our hands and walk backwards, if it wants to).

Scalia and Roberts, for example, have written things in other cases that suggest they may not go as far as Hudson and Vinson — that is, they might be willing to uphold even something so intrusive as the individual mandate, if they find such a mandate can be justified as both “necessary” and “proper” for the furtherance of Congress’s health care regulatory scheme. Judge Vinson found it to be arguably necessary, but not proper, because it would end any remnant of a limit on federal power.

Still, there is hope. Both Hudson and Vinson have carefully avoided challenging any past Supreme Court precedent. Instead, they take the position that the mandate breaks new legal ground — by regulating inactivity by private citizens, when such inactivity has no affect on interstate commerce (a thing never before attempted by Congress). The administration’s lawyers counter-argue that refusing to buy health insurance is in fact a form of economic activity, and that existing case law provides ample room to support the mandate under Congress’s commerce power.

The key question for the Court, then, will be whether citizens’ decision not to purchase private health insurance constitutes economic activity that “substantially affects” interstate commerce. If the Court says yes, then the mandate (and Obamacare) will stand. If it says no, the mandate will fall, and Obamacare will unavoidably begin to unravel. The fact that federal judges are even divided over the constitutionality of the mandate is a sign that it has never been the “slam dunk” that the Left has tried to claim.

Another reason to be hopeful: all four of the federal courts that have ruled on Obamacare so far — the two that have struck down and the two that have upheld the mandate — have agreed that it is not a tax, and thus cannot be upheld under Congress’s power to tax. (The mandate is to be enforced by fines collected by the IRS.) The Tax Clause would have been a much stronger constitutional provision for defending the mandate than the Commerce Clause, because of the Court’s traditional reluctance to second-guess Congress on its use of the tax power. The unanimous rejection of the administration’s tax clause argument — offered only after the law’s enactment, when its supporters began to worry the Commerce Clause might not be enough — makes it much harder for the law’s defenders to bank on a Supreme Court win.

In sum, despite the uncertainties, the circle is clearly closing around Obamacare. Things are better for health care reformers, and worse for Obamacare supporters, today than they were two days ago. Judge Vinson’s ruling is a huge vindication for FreedomWorks and other opponents of the individual mandate. But we simply can’t count on the courts. The only sure way to close the circle — the only sure way to reverse the government takeover of health care — is for Congress to put a full repeal bill on the desk of a president who is willing to sign it.

Dean Clancy is FreedomWorks’ Legislative Counsel and Vice President, Health Care Policy.