So the Supreme Court did the “unexpected” (expected by constitutional scholars and those in the know, but unexpected by the media, so therefore unexpected) and upheld the bulk of Obamacare, specifically the mandate. Medicaid expansion was tweaked, and there are some arguments that the limits on the Commerce Clause is the real far-reaching story of the day, but all the same, this is something to be thankful for.
It’s hard to believe that more than four years after Obama started running for President, and more than two years after it was passed into law (an event that I am not ashamed to admit drove me to tears of joy), it all came down to this test before nine people, which it survived despite popular wisdom. And of course this issue isn’t even close to being done. It’s not the beginning of the end for Obamacare, but it is the end of the beginning.
I have lots of random thoughts about the decision. First, about whether it is a tax or not. Sure, it’s a tax. The fact that it is a tax is the reason it was upheld, because the most convincing argument all along has been along these lines:
- You can raise everybody’s taxes by $1,000, and then give a $1,000 tax break to people who buy insurance. Net result is that people without insurance pay $1,000 more.
- You can have a “mandate” to buy insurance, and penalize everybody who doesn’t buy insurance with a $1,000 fine.
Economically, plans #1 and #2 are identical. Since #1 is clearly constitutional under the Congress’s power to levy taxes, the equivalent outcome #2 should also be constitutional. This is the logic that John Roberts ultimately bought in upholding the mandate.
Although he upheld the mandate under the ability to tax, I disagree with his statement that it can’t be upheld under the Commerce Clause. Judge Ginsburg is right: there is no way you can opt out of the health care market, and therefore every decision you make affects commerce. Don’t buy insurance and get hit by a bus? Somebody has to pay for your ER care, and that somebody is either existing policy holders, or property tax payers, or income tax payers, or somebody other than you. You can no more opt out of the health care market than you can opt out of police or fire or military protection.
As for the dissenters, only Kennedy bears comment. Of course Scalia, Alito, and Thomas would vote against anything. They voted to put kids away for life without parole, fer chrissakes. But Kennedy? To join the rest of that crew in saying that the entire ACA is unconstitutional on its face? I can’t believe that he would go that far in his legal reasoning. I think that’s really going to reflect poorly on him going forward.
Now, what about the politics? Lots of people are arguing that this is really going to energize the Tea Party base and lead to a Republican sweep. Maybe it will, but in politics, as in life, success begets success. Obama just had a huge win, and that’s got to give him some momentum. And while the Tea Party may use this to rally the troops, as they are promising, if the Democrats are smart (and that’s a big “if”), then expect to start seeing these ads on a TV near you:
- If Mitt Romney repeals Obamacare, then insurance companies will once again be free to reject treatment for kids with cancer.
- If Mitt Romney repeals Obamacare, then if you have kids in their early 20s who don’t have insurance, you will lose the ability to put them on your plan.
- If Mitt Romney repeals Obamacare, and you lose your health insurance, you are out of luck.
- If Mitt Romney repeals Obamacare, then insurance companies will once again be free to charge women more for insurance because of all those “lady problems”.
Etc. etc. As poll after poll shows, the individual aspects of Obamacare (aside from the mandate) are all popular. If you start gutting them with your “one page repeal bill on day one”, you are going to have to deal with lots of constituents who wonder why you hate kids with cancer so much.
And let’s bring this specifically to Mitt Romney. Obamacare is Romneycare, pure and simple. One is modeled upon the other. Obamacare is a conservative, not liberal, solution to our health insurance crisis (which is why Newt Gingrich also supported mandates). Again, if Obama is smart, he is going to say this in one of the debates:
“Mitt, Obamacare is modeled on Romneycare, mandate and all. You argued that Obamacare was different because it was unconstutional, That is no longer true. So if your plan is wrong for the country, why did you pass it in Massachusetts? And what would you replace it with if you were elected?”
Much hemming and hawing would commence, I believe. Because what can Mitt say that makes sense?
I end with a couple of observations. David Frum is one of the few conservatives that I read because he argues from facts and not made-up nonsense, and while I don’t always agree with him, his arguments are solid. He puts forward a rather conservative approach to improving health care. Again, frankly, it’s one that I hard a hard time quibbling with. It’s one that most Democrats would eagerly agree to. Once upon a time, it’s one that Republicans would embrace too, before their party became nothing more than a vehicle for blocking any and all Democratic initiatives.
Second, I’ve read a lot of stories in the past week leading up to this decision about people who would be positively impacted by Obamacare when it is fully implemented: those with pre-existing conditions, those who can’t afford insurance, and so forth. What I’ve been struck by is the fact that a lot of these people don’t like Obamacare, saying it doesn’t feel right or it infringes upon their freedom. Freedom to get sick and not get treatment, I guess. But still, this shows that most people just don’t get the full scope of the plan yet. Frankly, I don’t think they ever will, and that’s something that policymakers need to understand.
In the end, I don’t much care for Obamacare: it isn’t remotely like what I think our health insurance system should look like. Like I’ve said a million times before, insurance should be severed from employment (as David Frum admits), and something that has a public option. My favorite analogy is a regulated cell phone market: there are many regulated plans to choose from, with varying benefits that meet a minimum standard, at various cost levels. Obamacare isn’t close to that. However, this decision means that maybe, possibly, for the first time the fact that millions of people don’t have insurance will no longer be acceptable, and even more important, will no longer exist. Again, this decision is just the start. From here on out, I hope that both Democrats and Republicans can work together to come up with a system that covers everybody and provides quality care at a lower cost than currently.
I can dream, can’t I?