Thursday, June 28, 2012

Consequences of the Obamacare ruling in the short, medium, and long term

The fact that the nation is stuck with Obamacare is the least problem with the Supreme Court's ruling today, because health care is -- thankfully -- still not a Constitutional right, and the law can be reversed.  The best thing that is likely to come out of the ruling is a Republican-controlled White House and Congress, which will have a mandate to repeal Obamacare as their first order of business.  I was hoping for a different ruling (more on that in a moment), but I can't deny that today's ruling is probably the best boost a Republican campaign could have.

(It's probably pretty obvious that the reason for this is that Republicans are more likely to be fired up during this election.  For a more detailed discussion of the phenomenon of voting, see Satoshi Kanazawa's articles here, here, and here.  In brief:  people don't like to lose.  If that effect carries over from one presidential election to another, over four years, it seems likely to have an even larger effect in an election just four months after a polarizing decision.)

Not that I think a Republican victory would guarantee the repeal of the law.  Immediately after it passed, Republicans were rallying for repeal, but many were saying things like, "There are good things in the law that we want to keep."  That is a recipe for disaster, because it is not hard to imagine enough Republicans finding a few things here and a few things there about the law that they like so they don't want a full repeal, but neither can they agree on what specific parts of the law they want to get rid of.  I think Romney has it exactly right:  repeal and replace.  Repeal first.  Get rid of the abomination, don't squabble over particulars.  Then come together to pass a new reform after the business of repeal is safely done with.

I think there is a very good chance that Republicans will win the election, and a fair chance that they will repeal the law.  (At which point I feel certain that some Democrats will claim that their repeal is a radical dismantling of the safety net -- just watch.)  But the ruling today is still bad, because it has opened the door for Congress to do virtually anything under the power of taxation.  They don't actually have to levy a tax for a law to fall under the taxation power, and this is a very large loophole.  I realize that Congress could have done substantially the same thing in the form of a tax as it did with the individual mandate, but not exactly the same thing.  The difference is important to me, because now the rather specific power of taxation has become a general power to force people to do things as long as there is a specific penalty attached to failing to do it.  Not only can the government force you to buy health insurance, or a GM vehicle, it can also force you to read government literature (or face a tax) and it can force you to eat your vegetables (or face a tax).  I literally cannot think of anything that will not be covered by this new interpretation of the Constitution.

In fact, if Obamacare stands and the government becomes more deeply enmeshed in our health care, I expect the government to start pushing health directives on people within 20 years.  If the government can force us to wear seatbelts on the grounds that those who don't wear them cause insurance rates for others to rise; and if it can force us to buy health insurance on the grounds that it causes the rates for other people to rise; then you can be certain that this system -- which is guaranteed to run into financial problems like every other government program -- is eventually going to want people to stay healthier on the grounds that unhealthy people cause other people's insurance rates to rise (and/or cause the government to spend more providing care under subsidized insurance rates).  A law to eat your broccoli would be entirely consonant with the logic of the individual mandate.

Even if Obamacare is repealed legislatively, the principle that Congress can do virtually anything is established; and even though this principle has been the result of a century of jurisprudence throwing out everything that the 19th century took for granted about what our Constitution means, liberals will still claim that any reversal is the result of activist judges.  But there is one further potential bright spot, which is that a President Romney would be likely to have the chance to appoint one or even two Supreme Court justices.  The Obamacare ruling, which rests on the slimmest majority ever (something like 4.5 to 4.5, since Roberts is divided against himself on this one -- he sides with the conservatives in rejecting the interestate commerce justification for the law, but with the liberals in upholding the law nonetheless), might be reigned in by future courts.  And while I agree in general that courts should respect precedents, I can't agree that it should follow them slavishly.  The court has overturned some of its own principles in the past (most famously in Brown vs. Board of Education), and if a ruling is clearly bad to a majority of justices, they ought to state as much and rule to the contrary if a similar case arises.

But that's a long, long way off.  IF Romney wins the election, and IF he appoints conservative justices, and IF the conservative majority on the Supreme Court tries to shape some limits to Congress' power, things might get better.  I have been following politics for too long to be very optimistic, however.  For now, there is just a bad ruling, and the only thing to do is to work to overturn it.