Obamacare under Assault in Congress and Courts

Last week at a private meeting with incoming governors at Blair House, Governor-elect Nikki Haley of South Carolina pointedly asked President Obama if he would allow repeal of his signature health care law.  The people and small businesses of my state cannot afford the mandates in the new law, she reportedly told the president.  It was a bold gesture for a woman not known to be a shrinking violet.  Obama politely but firmly said he would not agree to repeal but would allow carve-outs for states that essentially adopted Obamacare at the state level.  He seems to be in a faux compromising mood these days. Yesterday a federal judge in Richmond, Virginia, did what Obama won’t do: he overturned the central provision of the law, an individual mandate requiring every person in the country to purchase private health insurance or pay a fine of up to $2,200 to the federal government. The judge ruled the individual mandate was an excessive and unconstitutional exercise of the Commerce Clause. The federal government has no right to force individuals to purchase a product. As Hans von Spakovsky of The Heritage Foundation points out, this all but assures this case will find its way to the Supreme Court, where we can only hope the justices reach the same conclusion. White House spokesman Robert Gibbs admitted the ruling struck at the heart of Obamacare:

Obviously the individual responsibility portions of the Affordable Care Act are the basis and the foundation for examining and doing away with insurance company discrimination on behalf of preexisting conditions. Obviously, without an individual responsibility portion in the law, you could not find yourself dealing with preexisting conditions because the only people that would likely get involved in purchasing health care would be the very sick. And obviously, that would be enormously expensive.

Without the individual mandate, people would simply wait until they are sick to buy insurance. Why? Because Obamacare prohibited insurance companies from turning down individuals based on a previous medical conditions. The prohibition on denial of coverage for those with previous conditions and the individual mandate are two parts of a whole; strike down the latter provision and the entire experiment comes crashing down. Two lessons emerge from this turn of events. The first is elections have consequences. Obamacare became law because Republicans lost in 2006 and 2008, creating the greatest opportunity for the passage of sweeping progressive legislation since the Great Society. But by winning the presidency in 2000 and 2004 and controlling the Senate for all but a brief period for the first six years of his presidency, George W. Bush was able to appoint 325 judges to the federal bench, including two solid conservatives (Roberts and Alito) to the Supreme Court. Over a quarter of the federal judges in the country were appointed by Bush 43, including Judge Henry Hudson, who ruled Obamacare unconstitutional. The federal courts, once the last refuge of progressive notions of social justice, is less hospitable.  The same is true of the 2009 and 2010 elections. Ken Cuccinelli was elected attorney general of Virginia while riding the wave of the biggest GOP landslide in the Commonwealth since Reconstruction. He filed suit seeking the overturning of Obamacare one day after it was signed into law. The new Republican House of Representatives will seek to repeal it and defund it. So if conservatives want to affect the direction of the country, they must win elections, and lots of them, at the state and federal level over a long period of time. Second, it is remarkable how unpopular Obamacare is in the country as a whole. Nancy Pelosi famously said they needed to pass the bill so people knew what was in it. Well, they passed it, we know what’s in it, and we don’t like it. According to a Rasmussen survey, the day before Election Day the number of voters who supported Obamacare was only 36%, while 58% favored its repeal. Other surveys show a closer spread, but they all show Obamacare is less popular than on the day it passed, and that is not a good sign for this administration. When it comes to the Obama agenda, the more we see, the less we like. For that reason, ending Obamacare once and for all will be the rallying cry for conservatives between now and 2012.