ObamaCare Is Likely To Die a Painful Death

On September 28th, the Obama administration filed a petition for certiorari with the Supreme Court seeking review of the ObamaCare decision rendered by the Eleventh Circuit on August 11th. That decision held the mandatory insurance provisions of the statute unconstitutional while allowing the rest to stand. As noted in a ScotusBlog article,

Seeking en banc review in the Eleventh Circuit would have made sense only if the government was going to press the Supreme Court to defer reviewing the constitutional question until next Term (including by denying review of the pending Sixth Circuit case).  So, the United States would have been making a choice to delay a final answer – because Supreme Court review is inevitable – for a year.  I expect that the agencies involved strongly resisted that delay, and the Solicitor General decided that the upside of potentially getting the panel opinion reversed was not actually that great, because any victory could itself be temporary.

The author of the ScotusBlog article also observes,

Different factors almost certainly had different weight for the various government lawyers involved.  But I think there is a simpler and more straightforward answer.  In situations like these, politics is never completely absent.  But the government tends to act in its institutional interests first, and the interest of a particular Presidential Administration second. (emphasis added)

Really? During the current administration?

Petitions have also been filed by those opposing ObamaCare, and apparently all hope that the Court will render a decision well in advance of the November 2012 elections. The Court seems likely to do so.

There appear to be four possible Supreme Court results:

1. Reject the insurance mandate but leave the balance of ObamaCare standing.

2. Uphold ObamaCare.

3. Reject ObamaCare completely,

4. Release no decision until after the election.

I have attempted to rank these possibilities from most to least likely, not based on any attempt to read the minds of the justices but on what lower courts have done, my understanding of ObamaCare, and perceptions of the present state of the law. Numbers two and three seem to be nearly tied, although number two may have a remotely better chance. All but number four -- which might leave them unchanged -- would add to President Obama's reelection problems. For the Supreme Court to agree with the Eleventh Circuit that the mandate is unconstitutional and to allow the rest of the law to remain standing would be the worst possible outcome for for President Obama. That is what all judges who have found the individual mandate unconstitutional have done, with one exception.

It is suggested in "How Obama could win if ObamaCare loses," published on September 29th, that if the Supreme Court finds the individual insurance mandate unconstitutional prior to the 2012 elections it could be helpful to the president by removing ObamaCare as a campaign issue.

The author argues,

By urging an expedited review by the U.S. Supreme Court, the president knows that the politics cuts his way. If the court strikes down the plan, then Obama won’t have to defend it in the fall campaign, robbing the Republicans of one of their two lines of attack, the other being the moribund economy. He could rally his base by arguing that he had pushed through a great “progressive” reform only to be foiled by the conservative-leaning Supreme Court. People, like markets, hate uncertainty, and the presumed swing vote by Justice Kennedy could settle the issue.

It is suggested here that such a decision could "remove a thorn in the electorate's side." However, that seems more likely to wiggle the thorn around in an irritating way and thereby reinforce the views of those who consider it bad law and an expensive blunder for reasons transcending its constitutional implications.

What Obama might have in mind is beyond me; it often is. However, with a Supreme Court determination of unconstitutionality, and the demise of the entire law (as per Judge Vinson), there would be substantial debate in the time remaining before the elections about how best to deal overall with national health care.

Following the rejection only of the insurance mandate, the administration would have to hustle during the heat of the election season to try to explain how ObamaCare can be made viable without the mandate. That would be very difficult if not impossible. Perhaps "free" government-provided health care or subsidized health care would be a way. For many reasons, however, including the costs of and general disenchantment with entitlement programs, that would be very difficult to sell to the voters.

There are many who seem to view ObamaCare as very bad.

According to a Rasmussen poll released on September 19th,

The latest Rasmussen Reports national telephone survey shows that 56% of Likely U.S. Voters at least somewhat favor repeal of the health care law, with 44% who Strongly Favor it. Thirty-six percent (36%) at least somewhat oppose repeal, including 26% who are Strongly Opposed. (To see survey question wording, click here.)

These findings are virtually identical to two weeks ago. A majority of voters have favored repeal of the law in every survey but one since the measure was passed by Congress in March of last year.

Should the Supreme Court uphold the individual mandate, and therefore the rest of ObamaCare, that might be a plus for the Obama administration. The author of the "How Obama Could Win" article contends,

If Obama wins the judicial appeal, it will still be a win for him along the lines of today’s conventional thinking. He will be able to argue that the Administration always knew Obamacare was constitutional, and the expedited review will muffle the issue in the general-election campaign.

However, in view of the bad odor the law is perceived to have, it might well intensify demands by those generally adverse to ObamaCare for the Congress to eliminate the mandate along with the rest of the statute as bad policy, as distinguished from simply because of the unconstitutionality of the mandate. That could easily make ObamaCare an even more compelling campaign issue than now.

The individual mandate is ObamaCare's tombstone cornerstone.

Judge Vinson, in Florida v. Health and Human Services, held it unconstitutional and, on the basis that the balance of the law is patently unworkable without the mandate, dispatched the entire beast, constitutional as well as unconstitutional parts alike. Unlike other judges, he held that since ObamaCare is unworkable without the mandate, the Congress did not want it to go forward in that debilitated condition. He found that the absence of a severance clause in the final legislation, along with the presence of one in earlier versions, compelled this conclusion. Others have not gone that far, concerned that to do so would encroach unduly on the prerogatives of the legislative branch.

Judge Vinson's reasoning that the mandate is the cornerstone of ObamaCare is difficult to escape. For example, he noted that

the defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].”

He had previously observed,

the defendants concede that the [individual mandate] is absolutely necessary for the Act’s insurance market reforms to work as intended. In fact, they refer to it as an ‘essential’ part of the Act at least fourteen times in their motion to dismiss.” Thus, the only question is whether the Act’s other, non-health-insurance-related provisions can stand independently or whether they, too, must fall with the individual mandate.

Reviewing congressional intent, Judge Vinson stated,

Although many of the remaining provisions, as just noted, can most likely function independently of the individual mandate, there is nothing to indicate that they can do so in the manner intended by Congress.

. . . .

[T]he individual mandate was indisputably essential to what Congress was ultimately seeking to accomplish. It was, in fact, the keystone or lynchpin of the entire health reform effort.

Without the individual mandate, unless the Congress takes over where the Supreme Court leaves off and repeals the remainder of ObamaCare, it will have to do more than provide substantial additional funding.  As Judge Vinson stated,

If Congress intends to implement health care reform --- and there would appear to be widespread agreement across the political spectrum that reform is needed --- it should do a comprehensive examination of the Act and make a legislative determination as to which of its hundreds of provisions and sections will work as intended without the individual mandate, and which will not.

For the present Congress, particularly during the months leading up to the election, to take up extended debates over what to do to unravel the ObamaCare mess without the mandate would significantly diminish Obama's already declining chances of winning. It might even chasten some of the dwindling numbers of Obama's true believers who have yet to figure out what went wrong. A "comprehensive examination of the Act" --  Obama's naked tree left standing but devoid of roots and likely to be blown down -- should be the last thing Obama desires during the 2012 campaign.

The voters have already been provided a surfeit of equine fecal matter and seem likely to reject additional servings. Now, there is no Nancy Pelosi -- who was instrumental in passage of ObamaCare and reigns supreme as the most unpopular member of Congress -- to tell us authoritatively that we will find out what a revised bill means after it has been passed.

Nor is there another Nancy to reject as frivolous any notion that a revised ObamaCare might raise constitutional questions.

Nor, during congressional consideration of a new and revised ObamaCare without the individual mandate, is President Obama likely to be able, with a straight face, to demand that it -- whatever "it" turns out to be -- be passed "right now."

As with any aspect of the American economy as complex and big as health care, focus on how to fix ObamaCare will necessarily focus on the present state of the economy. According to a Gallup poll released on September 30, 48 percent of Americans view the Republicans as doing a better job of keeping the country prosperous; only 39 percent view the Democrats in that light.

If Obama seriously hopes to have a second term then increasing the focus on our fragile economy through an examination of the inner guts of ObamaCare is hardly a desirable strategy.