It must have been with a mix of joy, relief and astonishment that the liberal intelligentsia greeted the Supreme Court ruling, affirming the constitutionality of Obamacare. President Obama was saved from the humiliation of having his signature domestic accomplishment invalidated, and conservatives, who had grown cocky in recent weeks, believing that Obamacare was headed to the ash heap, were provided ample servings of humble pie.
At the end of the week, it was clearly POTUS 1/Republicans 0.
But that was last week.
Now Obamacare – the undisputed law of the land – goes back to the forum of its origin for debate and consideration; the public square. This is not good news for the law or the President and his re-election. Worse for both, it goes back for public review with the reviled “individual mandate” officially recast as a tax, courtesy of SCOTUS.
Unique among entitlements, Obamacare’s weakest leg has always been public acceptance.
The law was unpopular in legislative development, was unpopular at its passage and has been durably unpopular for the eighteen months leading up to the SCOTUS decision. Now, after the Supreme Court has ruled, 52 percent of Americans still want all or part of the law repealed, a remarkable phenomenon.
And nothing in the SCOTUS ruling changes anything that made Obamacare unpopular to begin with. If anything, the perception of the ruling has made the health care law look worse.
As I wrote on April 1, 2010, Obamacare effectively creates an entirely new entitlement on top of the crumbling pillars of our existing public health care system. The law has $560 billion in tax increases and $520 billion in spending cuts (mostly from Medicare). Budgeting gimmicks make the law appear revenue neutral today, but the CBO has already exposed the longer term costs which rocket into the the trillions beginning in 2013.
Millions will lose their employer-based health care as businesses decide that it is cheaper to pay a tax than expand coverage to meet Obamacare’s minimum standards. Cynically, thousands of waivers have already been granted to “Cadillac” health plans enjoyed by unions that would otherwise be taxed heavily, distorting health care “haves” and “have nots.” And now – ominously – SCOTUS has affirmed the right of the most hated agency in the federal government – the IRS – to assess taxes from Americans who do not carry health insurance.
Using this construct, the irony of the SCOTUS decision is that while conservatives and Republicans have lost in court, they have gained an unexpected and enormously beneficial issue for the campaign trail. Indeed, had the law been overturned, it would have President Obama’s until-now, fairly apathetic base that would have been enraged into action. Now that the law has been found constitutional, it will be grassroots conservatives who will be galvanized for the fall campaign; in another irony, delivering to Mitt Romney the one constituency he could not win over on his own.
And this issue is so potentially potent because it is an easily understandable metaphor for the larger narrative of President Obama’s stewardship as Chief Executive.
Crippling government mandates on the private sector that will depress economic growth and job creation. New uncertainty and dislocation for any citizen with existing health care as companies decide how to comply with Obamacare’s regulatory burden. Generous carve-outs that protect the best health care for the President’s progressive backers, and, courtesy of SCOTUS, new taxes on the middle class – something that the President and Democrats had promised not to do.
If Obamacare is the solution, you have to ask what the problem was.
In the presidential race, the SCOTUS ruling provides rich texture for Mitt Romney as he presses his very strong economic indictment against the President.
Indeed, at its core, Obamacare represents a massive transfer of wealth that introduces government proprietorship over 1/7th of the US economy without any discernible catalytic impact on business investment or expansion, critical to job growth. There is no better example of liberal hubris and the jaw-dropping progressive disconnect from the concerns of average citizens; just as the bulk of middle America has been enduring the worst economic years since the Great Depression.
In the Senate, the Obamacare ruling could be a “game-changer” for Republicans. Despite Democrats having more seats up this election cycle than the GOP, the Republican path to 51 seats has thus far not been obvious. Now that may change.
Scott Brown, currently in a pick ’em race with Elizabeth Warren, won his partial term to take Teddy Kennedy’s seat, in part as a voter referendum on Obamacare, where Brown would prevent unilateral Democratic passage of the health care bill as the 60th – and blocking – Senator. Now, Brown has the same issue and the same sense of urgency. A vote for Warren is a vote for Obamacare.
Democratic Senators Jon Testor (MT), Claire McCaskill (MO) and Bill Nelson (FL) will all have to re-defend their support for Obamacare in 2010, this time at the ballot box, making all three races competitive.
In Virginia, Tim Kaine, former head of the DNC and a presidential confidante will have the added burden of defending Obamacare against former Senator George Allen in this open race. Obamacare opens a new line of attack for GOP Senate candidates in New Mexico and North Dakota, and may add an element of uncertainty to otherwise secure incumbent Democrats running in Ohio and Michigan.
Suddenly, there are enough seat and pathways for Mitch McConnell to become Majority Leader again.
In the House, Nancy Pelosi’s dream of capturing the 25 seats necessary to get a majority is most likely dead. Now, Democratic Members who survived the slaughter in 2010 will have to defend their votes yet again. There are at least 12 Democratic House seats in areas that would be receptive to a GOP argument against Obamacare, probably enough to outweigh any losses for freshman GOP Members that inevitably occur. John Boehner is more likely to retain his Speakership today than last Wednesday, before the SCOTUS verdict.
In sum, the SCOTUS ruling sets the table for a Republican sweep. It does not guarantee that result, mind you, but rather it provides a defining opportunity if the GOP manages the issue effectively on all levels.
And the vote matters.
Crucially, this is where the SCOTUS ruling overlaps with the politics of legislating.
By classifying Obamacare’s individual mandates as a tax, it now becomes a revenue provision for the purposes of Senate rules. That means that only 51 Senators are needed under the fast-track procedure known as “reconciliation” (Obamacare debate veterans will remember that Democrats inappropriately used this procedure to pass Obamacare to begin with) to repeal the mandate. And to manage that as the majority, the GOP needs to “net” four seats; very possible from the list of races referenced above.
Recent polls have shown voter ambivalence concerning which presidential candidate has the best plan to get the nation moving again. The SCOTUS verdict crystallizes that fuzzy uncertainty into a simple choice; do you want Obamacare or not.
52 percent currently say “no.” If that holds for 127 more days, then the citizens themselves – who first rose up in opposition in town hall meetings in 2009 – will finally put an end to Obamacare.
PS: Among the many unintended consequences of the SCOTUS decision is a the fresh (and untested) possibility the the Court’s ruling invalidated Obamacare by other means.
Article I Section VII of the Constitutions states, “All Bills for raising Revenue shall originate in the House of Representatives…” Obamacare devotees will remember that it was the Senate which passed the final version of Obamacare first (through reconciliation) and the House voted second. Now that SCOTUS has declared that the mandate is a tax, Congress has effectively – if unintentionally and after the fact – broken a key rule for how Congress is supposed to operate.
While Congress should be held harmless for passing what they believed was a “penalty,” now that the mandate has been classified as a tax, it should require approval through the regular order.
Don’t hold your breath…..