Win Some, Lose Some

Liberals may come to regret parts of the Obamacare ruling, experts say

June 29, 2012

The United States Supreme Court on Thursday largely upheld President Obama’s controversial healthcare law by a narrow 5-4 majority.

Chief Justice John Roberts surprised many by siding with the four liberal justices in upholding the individual mandate to purchase health insurance, the central—and most contentious—provision of the law that many court watchers had predicted would be struck down as unconstitutional.

Though the Court ruled that the mandate was not permissible under the Commerce Clause, as the administration had argued in defense of the law, it also ruled the mandate could be upheld under the federal government’s power to tax. Had Roberts joined with the four dissenting justices, the entire law would have been invalidated.

The law’s supporters reacted triumphantly to the ruling.

"Today's decision was a victory for people all over this country whose lives will be more secure because of this law," Obama said from the White House. "Today, I'm as confident as ever that when we look back five years from now, or 10 years from now, or 20 years from now, we will be better off because we had the courage to pass this law."

DNC executive director Patrick Gaspard expressed his delight in more colorful fashion, tweeting: "it’s constitutional. Bitches."

Republicans expressed disappointment with the ruling, but reiterated their pledge to repeal and replace the law should they take power in 2013.

"We cannot allow this healthcare law to go into effect," said Sen. Jim DeMint (R., S.C.). "This problem will only be solved when we replace this president."

GOP presidential nominee Mitt Romney echoed this sentiment, saying he would act to repeal the law on his first day in office, if elected.

"This is the time of choice for the American people," he said. "Our mission is clear: If we want to get rid of Obamacare, we're going to have to replace President Obama. My mission is to make sure we do exactly that."

DeMint said if Republicans retake the Senate they could potentially repeal the law through the "budget reconciliation" process, which only requires 51 votes, as opposed to 60. Democrats used this tactic to pass the final version of the law after losing their 60-vote majority in January 2010.

House Majority Leader Eric Cantor (R., Va.), who called the decision "a crushing blow to patients throughout the country," said the House would vote to repeal the law when Congress returns from the July 4th recess.

House Budget Committee chairman Paul Ryan (R., Wis.) argued the court’s ruling "strengthens" the case for repeal, saying: "It is now in the hands of the American people to determine whether this disastrous law will stand."

However, despite considerable disappointment on the right, much of which was directed at Chief Justice Roberts, a Republican appointee, some of the law’s opponents said the ruling was a victory for the conservative cause.

"We won," said Randy Barnett, the Georgetown law professor who led the legal challenge to the law. "All the arguments that the law professors said were frivolous were affirmed by a majority of the court today."

The court concurred with the opposition’s argument that the federal government did not have the authority to regulate economic inactivity—the act of not purchasing health insurance—under the Commerce Clause, and in so doing placed significant restrictions on federal power.

"On the liberty side, we won," said Virginia attorney general Ken Cuccinelli, another leading opponent of the law. "The Supreme Court for the first time declared the outer limits of federal power under the Constitution."

Roberts wrote in his majority opinion that the Commerce Clause "is not a general license to regulate an individual from cradle to grave."

Yet the mandate was still upheld as a tax, which opponents point out was precisely the opposite argument the president and his administration made in defense of the law.

"Ironically, the Supreme Court has decided to be far more honest about Obamacare than Obama was," said Louisiana governor Bobby Jindal. "They rightly have called it a tax."

Cuccinelli said the decision was also a victory for states’ rights, citing the court’s 7-2 holding that the federal government could not withhold federal funds to coerce states to dramatically expand Medicaid coverage, as originally required under the law.

Political analyst Jay Cost told the Washington Free Beacon that this tweak in the law was a "huge sleeper issue" that conservatives should view as a "feather in our cap politically."

Forbes contributor Avik Roy argued that Medicaid decision has the potential to dramatically increase the cost of implementing the law, if more individuals sign up for the state-based health care exchanges, which are far more generous—and far more expensive—than Medicaid.

The Congressional Budget Office (CBO) must now update its score regarding the law’s impact on the deficit, which could be much greater as a result of the ruling. Though sold as legislation that would decrease the deficit, the health care overhaul is estimated to increase the deficit by at least $300 million. When the law passed in 2010, proponents claimed it would cost only $940 billion over 10 years. A recent CBO report estimated the actual cost would be nearly twice that amount.

Cost said the ruling, while disappointing, was potentially a huge long-term victory for proponents of limited government, given the legal precedents established in the Court’s opinion. "Sure, the White House gets its short-term victory," he said. "Smart liberals are going to be much less pleased, and they should be."

Roberts displayed "political genius," he said, by establishing solidly conservative legal precedents that will pay dividends for decades, while simultaneous winning over the left by upholding their cherished legislation.

"A critical element of long-term liberal strategy is to destroy the concept of limited government," Cost said. "Roberts put a stop to that, and got the left to praise him for it. That's a huge win."

Earlier this month, a CBS News/New York Times poll found that more than two thirds of Americans wanted the Supreme Court to overturn at least the individual mandate; nearly half of respondents disapproved of the law, compared with just 34 percent who supported it.