Just yesterday, President Obama said this: “I’ll work with anybody who wants to work with me to continue to improve our health care system and our health care laws, but the law I passed is here to stay.”
Count this as one of those times when I desperately hope I’m wrong. Perhaps more so than any other prediction I’ve ever made. But I think Obama is right. It is here to stay. I view the likelihood of Obamacare being repealed as virtually nil. More about that in a moment.
It also seems to me that there is nothing positive, no silver lining, in the recent SCOTUS ruling on Obamacare. I’ve heard much about how Justice Roberts’ actions saved the court’s reputation as an institution. I’ve also seen much made of the ruling’s curtailing of the Commerce Clause. I wrote this to a friend last Saturday: “I’m afraid conservatives are are making a bit too much of this. Wickard v Filburn is still on the books. So is US v Darby. It may be true that some limitation was accomplished by this ruling, but do you think that a liberal SCOTUS in the not so distant future will be so concerned with stare decisis relative to this ruling that they won’t rule in favor of expanded congressional power in another case? I’m pretty skeptical. Even if a hard line was drawn on the limits of congressional power, the line was drawn too late and too far out. And that’s to say nothing about the implications of what Roberts was willing to affirm as indeed constitutional, which is ominous enough on its own.” It seems Fred Thompson agrees with my assessment. On Tuesday, he wrote this:
The desire to find a Reagan-like pony in all of this has caused some of my conservative friends to see one where none exists. In fact, many pessimistic liberals and optimistic conservatives have one thing in common: the view that somehow the opinion places new limitations on the use of the Commerce Clause, because it was deemed not applicable in Sebelius. They also think that the decision substantially restricts the conditions that the federal government can place on states regarding programs partially funded by the federal government. Unfortunately, in my view, both of these beliefs are wrong.
The majority opinion rejected the Commerce Clause as a valid basis for the individual mandate because, while the federal government can regulate commerce and commercial activity, it cannot compel economic activity, as the mandate attempted to do. The chief justice’s opinion contained a lot of music about the limitations of the Commerce Clause that is easy on conservative ears, but it was essentially the same set of points that conservative justices, usually in the minority, have been making for years. In 1942 the Supreme Court decided in Wickard v. Filburn that a farmer could be penalized for growing wheat on his own farm for his own consumption. Many view this as the high-water mark of the expansive interpretation of the Commerce Clause. The Court in Sebelius in no way overruled or rejected Wickard. On the contrary, the opinion pointed out that in Wickard the case involved the “activity” of growing wheat. In Sebelius there is no commercial activity on the part of one who chooses not to purchase health insurance. Wickard is just as egregious and just as valid as it has always been.
Dealing with the issue of the mandate penalty as a tax, he goes on to say this:
So we are left with no silver linings and one major concern for the future that goes beyond Obamacare. It seems that, after this Court decision, while the government cannot make you buy broccoli under the Commerce Clause, it can tax you if you don’t.
Again, some optimists say that, since the Court relied upon the government’s taxing power, we are protected as a practical matter, since Congress would always be reluctant to pass a huge new tax. However, in the future Congress can insist it’s not a tax, just as it did this time. One would think that it would be politically more difficult to pull this off again, but there is no legal constraint to keep the congressional leaders from trying — deny it’s a tax during debate and have the government argue in court later that it is a tax.
He concludes by suggesting that the “real silver lining is that in a democratic republic we get another chance in November to fix it.” He’s right, of course, that we have a chance to fix it. The law can be repealed. But consider what that will take. The Republicans will have to not only take back the White House, they will also have to take back the Senate. And, presumably, they will have to get a filibuster proof majority in the Senate.
Senator Mitch McConnell recently suggested he’s prepared to pass such a repeal through the budget reconciliation process, which only requires a simple majority. It was used by the Democrats to pass the health care bill in the Senate back in 2009. It would certainly be an easier task to get 51 votes as opposed to 60. But McConnell and his fellow Republicans in the Senate would have to find the intestinal fortitude (guts) to actually use the reconciliation process, and guts among Republican Senators is a commodity in short supply. They know that they will get blasted by the Democrats and pilloried in the media for using reconciliation to accomplish repeal, and they also know that the fact that reconciliation was used by the Democrats to pass the bill in the first place will be conveniently forgotten by the media. Then there’ll be the inevitable charge of racism, that they are only doing this to take away the signature legislation of the first black president.
In short, I just don’t see repeal happening. Maybe Romney actually beats Barack Obama. Maybe the Republicans do win the Senate. But I don’t see them getting 60 seats. And I don’t see them being willing to take the kind of heat they’ll be subjected to if they move forward with repeal through budget reconciliation. The only way I see it being a realistic possibility is if Obamacare not only remains unpopular, but plummets to polling levels that even the Democrats would conclude to be too low for them to remain supportive of the law. Perhaps at that point some of them would defect and vote to put the thing out of its misery, and if it got to that point, reconciliation becomes moot.
Speaking of moot, I’m not at all sure the Republicans will beat Barack Obama, or gain four seats in the Senate (let alone thirteen), so why worry about the wimps in the Senate disappointing me?
I still hope I am wrong. I’d like someone -anyone- to show me that I am. Anyone? Anyone? Bueller?