The same could be done for repeal. As Keith Hennessey has pointed out, if Republicans regain control of the Senate in 2012 (which seems plausible, given the number of seats in play that are currently held by Democrats), and the House remains under Republican control, Republicans could dismantle Obamacare on a reconciliation bill, and they could do so without the need for any Democratic votes. Repeal would need only a simple majority to clear the Senate. There are now 47 solid votes for repeal. With a pickup of just four repeal votes, Republicans could send a full repeal bill to the president in 2013. And if the president is someone other than Barack Obama . . . Live by reconciliation, die by reconciliation.
Legally, Judge Roger Vinson’s ruling this week that Obamacare is unconstitutional has fundamentally transformed the landscape. The individual mandate, which is at the center of Judge Vinson’s opinion, is now very much on the ropes in a legal sense. It is also highly vulnerable legislatively, with a large percentage of the electorate opposing its implementation. One way or another, the chances that the individual mandate survives intact until 2014 are low, and dropping by the day.
Further, Judge Vinson’s case has emboldened the states in their struggle for control over health-care policy. The architects of Obamacare assumed they could impose the law’s massive administrative burdens on the states without much pushback. The feds have all the money, and thus all the power, or so the thinking went. But now Judge Vinson has sided with 26 states that think the Constitution’s federalist framework means something. The truth is, Obamacare may be too cumbersome to be workable even with state cooperation, but it most certainly won’t work without the states doing most of the dirty work. With Judge Vinson’s ruling, many states are now openly wondering why in the world they should move forward with costly and risky plans to implement a program they find fundamentally flawed and objectionable.
Obamacare is hanging on by the thinnest of threads. It is the law for now, but it’s far from settled policy. The final word on it hasn’t been uttered yet. In all likelihood, the voters will get to do that, with the votes they cast in 2012.
— James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director of the Office of Management and Budget from 2001 to 2004.