Obamacare Repeal Dealt Mortal Blow by SCOTUS Decision

In 2008, after Arlen Specter switched parties in an ultimately failed attempt to save his Pennsylvania Senate seat and Al Franken out-lawyered Norm Coleman to win the Minnesota Senate seat, the Democrats had the 60 votes to pass ObamaCare. They no longer needed to woo a Republican, such as Olympia Snowe of Maine, to end a  GOP filibuster. With a big Democratic majority in the House, the bill was going to pass.


Of course, the bill was passed with an individual mandate to purchase insurance which its sponsors argued ferociously was not a tax. A tax rather than a mandate would have meant Obama violated his campaign pledge not to raise taxes on anyone but the wealthy, and might have made the bill unpalatable for a few endangered Senate Democrats running for re-election in 2010 or 2012.

With the bill’s passage, there were only two ways to stop its full implementation, scheduled  for 2014. One was for a successful challenge to the bill in the courts. The  other, and seemingly more difficult, path was for the Republicans to gain control of both houses of Congress and win the White House in 2012. They would then use the budget reconciliation process themselves to eliminate those provisions of the bill that were subject to budget reconciliation. The idea that the bill could be fully repealed by the Republicans in Congress was a pipe dream, since if they took back control of the Senate, there was no chance to get to a filibuster-proof 60 votes in 2012 in the Senate.

Full defeat of Obamacare was possible only if the Supreme Court threw out the legislation. When oral arguments were heard at the Supreme Court in March, most observers thought things went very well for the states which were challenging the legislation. At a minimum, it appeared that the individual mandate was in serious trouble. If the mandate were thrown out, then the Court would need to decide if certain other provisions would also go or whether, because there was no severability clause in the legislation, the entire bill would be stuck down.


On Thursday, Chief Justice Roberts read the opinion of a sharply divided 5-4 Court. Roberts sided with the four liberals and upheld Obamcare, declaring that the penalty associated with failure to buy health insurance could be construed as a tax and was clearly under the purview of Congress, even if they avoided labeling it as such on purpose.

For Roberts, often chided as a strong conservative by the likes of Court writers such as Jeffrey Toobin, to concur in upholding Obamcare in this fashion is a bit of a shock. The four dissenters on the Court accepted the explanation of the Obama administration and Congress that the mandate was not a tax. They found, like Roberts, that the commerce clause could not be construed to allow the mandate — in essence it did not allow regulation of economic inactivity. The four dissenters would have invalidated the entire bill due to the lack of a severability clause.

Roberts’ failure to join with the other conservatives on the Court has been explained away as a minor loss associated with a major victory for the right by a few commentators due to the commerce clause language. Since I think the chances that Obamacare  will now become implemented law are high, I do not see it as a small, short-term loss for the right exchanged for big future gains in jurisprudence on other issues.

Thirty million new dependents have been created for a new federal welfare program that could become one more huge budget buster, especially if millions decide to only sign up for insurance when they actually need insurance, or if corporations drop their  health coverage and choose to pay a fine, moving many of their employees onto the federal rolls. A tipping point between the role of government and the citizen has been passed.


The four dissenters would have invalidated the entire bill. Roberts threw one bone to the right, ruling that the Medicaid expansion was coercive — that if states did not agree to the expansion, they could not suffer any reduction in federal participation in the program for those already receiving benefits. This will now open the Medicaid expansion to fights on the state level, where GOP governors are in charge of more than half the states.

Some are finding a  silver lining for conservatives in the ruling. I do not see it that way. The easiest path to eliminating the legislation is now gone. Now the GOP will have to run the table in November.

Sure, this will be motivation for the Tea Party and may get Mitt Romney out of the shadows and out making his case on this and other issues a bit more. But I am not convinced that many more voters will swing to the GOP side as a result of the decision, unless the word “tax” scares more people than the word “mandate.” The president, on the other hand, has had several very good weeks on the heels of his executive order on no longer enforcing immigration policy for younger illegals who meet certain conditions. His lead among Hispanics has widened to over 40 points (over 50 in some states). In Florida, a must-win state for Mitt Romney, Obama now has a 24-point lead among Hispanics (a group that includes many GOP-friendly Cubans), and a 4-point lead in the state, according to the latest Quinnipiac poll, a survey which has had a small GOP lean this year. Other toss-up states, such as Nevada and Colorado, may be tougher pickups now for Romney with the sharp shift among Hispanic voters.


In Ohio, Obama has led in the two most recent polls with a very surprising 9-point lead in the latest Quinnipiac survey. This is another must-win state for Romney. No Republican has ever  been elected president without carrying  Ohio. Quinnipiac suggests that the Obama campaign’s anti-Bain ads have had an impact, damaging Romney in the state. Expect the Obama campaign to double down with these ads in the Midwest now that the Washington Post, in full campaign mode, has created more misinformation for use by the Obama ad team.

The RCP Electoral College map with all swing states allocated to one or the other candidate now shows Obama with a 332-206 lead. Romney has the lead in only two of the nine states that Obama moved from the Bush column in 2004 to his own in 2008 — Indiana and North Carolina. Nate Silver has the race a bit closer, with Romney a slight favorite in Florida and Obama with an Electoral College total in the 290s. Silver also sees little electoral benefit to the GOP from the decision, since the Court’s ruling will validate the law in the eyes of some who may have been opponents.

Let us assume that Romney can thread the needle and win a victory in November. This could occur if the economy weakens some more between now and then and the health care decision contributes to a further slowdown in hiring. If unemployment numbers rise, or if Romney selects Marco Rubio as his running mate and makes inroads among Hispanics, a victory is certainly possible. The betters think Obama’s chances of winning rose this week, and so do I. This is still a winnable election for the Republicans. But if Romney is successful, will the GOP also win the Senate and hold the House?


The Republicans look to be in  decent shape as far as retaining the House, though they may lose 5-15 seats. But the Senate is a crapshoot. The GOP looks in good shape to pick up a seat in Nebraska, and is a slight favorite to do the same in Wisconsin, North Dakota, and Missouri. They have about a 50% chance to pick up seats in Virginia and Montana. Florida, New Mexico, Ohio, and Hawaii are all potential pickups but are higher hurdles. On the other hand, Olympia Snowe’s retirement means independent and Obama supporter Angus King will win the Maine Senate seat, and he is likely to caucus with the Democrats.  Scott Brown is in a tossup race in Massachusetts, and Dean Heller has only a small lead in Nevada. If the GOP wins all the close races, it would get to 52. If it loses all of them, it will be at 45. At this point , I think the odds are no better than 50-50 that the GOP gets to 50, which would be enough if Romney wins the presidency.

Obamacare has been regarded by conservatives as a huge problem since it was passed — a very expensive new federally administered health care entitlement added at a time when the current federal health care programs are unsustainable. The chances for repeal or major changes to the bill suffered a perhaps mortal blow.

The chief justice punted. His reputation in the New York Times, on MSNBC, in the New Yorker, and in the New Republic will be shinier. But his inexplicable abandonment of conservative principle, with a reach to find a way to keep the law constitutional, may do far more lasting damage to the republic.



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