July 08, 2012|Robert L. Ehrlich Jr
So much to say and only 800 words to say it. So let's break the Supreme Court's Obamacare decision down between the law, politics, and the real world.
•The decision: A monstrous new social program was found constitutional. A mandate the president insisted was not a tax was found to be a tax — and fully constitutional under an aggressive interpretation of congressional taxing authority. It was indeed fortuitous for President Barack Obama that Chief JusticeJohn G. Roberts Jr. read the mandate as such; the majority opinion made clear his opposition to such drastic federal intervention under the Commerce Clause.
Accordingly, a narrow majority of the Supreme Court continues to recognize some limitations to federal intervention in everyday commerce. Per Chief Justice Roberts, "[T]he Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions."
Interestingly, the justice whom conservatives were most worried about made clear his disdain for the majority's decision. JusticeAnthony M. Kennedy's stinging dissent charged that the Court had "undermined" the "values" that should have guided its analysis: "caution," "minimalism" and "the understanding that the federal government is one of limited powers."
Nevertheless, the majority opinion was a win/win for the president; his mandate to purchase health insurance survives. If the costs borne by those now forced to buy insurance are construed as a tax (as I and many others believe they should be), they join with the other 18 (mostly) progressive Obamacare taxes to form the largest tax increase in American history. Lost among most of the analysis was another surprising result: Obamacare's attempt to cover more people under Medicaid was significantly limited; those states that refuse to extend coverage to new beneficiaries will no longer face the prospect of losing their existing federal payments. A small victory for the taxpayers on an otherwise bad day.
•The politics: It was a great day at 1600 Pennsylvania Ave. Liberals of all stripes celebrated a surprising victory in a court they love to hate. Even the losing Commerce Clause argument could not ruin their day. But the old axiom, "Be careful what you wish for," is appropriate here. The decision reminded voters of an unpopular program that Democratic candidates ran away from in 2010. As periodic reports of Obamacare's exploding costs and adverse impact on job creation continue, one wonders whether marginal-seat Democrats will change direction to support the bill. Don't bet on it.
For conservatives, the decision was a reminder that there is no such thing as a "sure" thing. The Jets beat the Colts in Super Bowl III. Truman beat Dewey in '48. And a Roberts-led court has given its approval to (most of) Obamacare.
Within hours of the Court's decision, reports surfaced about an extraordinary surge in contributions pouring into the Romney campaign coffers ($4.6 million in 24 hours from 47,000 donors). In politics, it's usually about the aggrieved party, and aggrieved right-wingers now have added impetus to defeat the president. Look for a "repeal and replace" moniker to assume a higher profile in the Romney lexicon.
Public opinion polls reflect a majority of Americans remain opposed to a bill that is projected to cost $1.76 trillion (over 10 years) and has already produced 5,931 pages of arcane regulations. Opponents now understand that the only way to defeat Obamacare is a Romney victory and GOP control of Congress.
•The real world: Over the past two years, the president has been able to tamp down speculation that large employers will drop their employer-paid health plans and simply pay an Obamacare-required penalty instead. Many corporate bottom lines would improve as a result, but not the well-being of millions of American workers. A spate of such decisions would set off alarm bells in the White House.
Regarding Medicaid, recall that even a Democratic Congress could not pass comprehensive single-payer reform; Obamacare's increased eligibility limits (up to 133 percent of poverty) are a consolation prize for the government-run health care crowd.
Obamacare's impact will be felt disproportionately by small business owners. Many are taxed at individual rates. They will pay more and find it more expensive to offer health insurance to their employees. Remember, the most influential small business group in the country (the National Federation of Independent Business) was a plaintiff in the case.
The bottom line: Just because Obamacare is a bad idea does not mean it's unconstitutional. Whether the president decides to run on what will undoubtedly remain an unpopular program is another question. His progressive base is pleased by the high court's blessing of this aggressive federal power play. The opposition is empowered, too. The days of worrying about the "too moderate Mitt" are over. "President Romney" is the last hope to kill Obamacare. One year ago, who would have thunk?
Robert L. Ehrlich Jr.'s column appears Sundays. The former Maryland governor and member of Congress is a partner at the law firm King & Spalding, the author of "Turn this Car Around" — a book about national politics — and Maryland chairman for the Romney presidential campaign. His email is ehrlichcolumn@gmail.com.
