As everyone currently awake knows, the Supreme Court has upheld the entire Patient Protection and Affordable Care Act (“Obamacare”). At first glance this is obviously a huge win for President Obama. His signature piece of legislation has stood up to constitutional muster and can continue being implemented. However, the ruling itself and the implications of it are much less clear, and may not be so terrible for several reasons:
Commerce Clause vs Tax Power
The government argued before the court that Congress had the power to implement the individual mandate to purchase health insurance, because the failure to carry health insurance affects the overall healthcare market and thus interstate commerce. This argument actually LOST in the court’s opinion. Chief Justice Roberts strongly rebuked the use of the Commerce Clause to expand the government’s power in this way. Instead, he said that Congress did have the power to levy the “penalty” for not carrying insurance as a tax. While this still allows the government to technically mandate things under its taxing power, it potentially allows the court to revisit more broad Commerce Clause cases in the future and reign it back in to what was intended.
Taxes Aren’t Popular, Are Easier to Repeal
The individual mandate is now a tax (or it’s unconstitutional). Taxes aren’t popular. President Obama ran for office saying he would never raise taxes on families making under $250,000 a year. That promise has already been broken, of course, with the tanning salon tax at the very least, but now it’s completely impossible to hold up. As we already know, Obamacare already raises taxes over a dozen different ways (most of which just haven’t kicked in yet). Now that the linchpin aspect of the bill is itself a massive tax, and a tax levied exclusively on the uninsured. That’s going to be much harder to sell now.
Taxes are also much easier to repeal. Normal bills in the US Senate are subject to minority filibuster, which requires 60 votes to override. However, tax bills (required to be originated in the House) cannot be filibustered. Even if the full bill could not be repealed with this kind of procedure, at the very least the mandate itself could be invalidated (as a tax cut?) with only 51 votes. All it would take to accomplish this is a Romney win and three new Republican senators in November (with ~23 Senate seats held by Democrats up for reelection this year, that’s a distinct possibility).
In sports, you lose at the end of a match, and it’s over. In politics, you lose in the middle, and the match never ends. In this match, we’ve lost a big one, but it has motivated conservatives and libertarians like a win might not have done, and we get to hit back now. As of only five hours after the Supreme Court ruling, the Mitt Romney campaign and Victory Fund had received over 13,500 donations, totaling over $1.5 million, an average of just over $100 per contribution. There was no moneybomb, no advertised fundraising drive. People heard about the ruling and donated organically. Even people who have been strident critics of Romney as the Republican nominee have been motivated by this ruling to contribute. If we can keep that enthusiasm up for just four more months, there’s no way we’ll lose.
Don’t get me wrong. I think the ruling itself is terrible, potentially more terrible than the bill itself if the expansive tax power precedent can be abused in the future. But there are subtle and potential silver linings here that could make it all work out next year. I don’t think Chief Justice Roberts is cynical enough to have considered all these secondary consequences when making his game-changing vote, but I’ll take what I can get.
Stay calm and VOTE.