Obamacare in Court
Judicial repeal is a good thing; political repeal is better.


Andrew C. McCarthy

Monday’s announcement that the Supreme Court will consider constitutional challenges to Obamacare has been met with hurrahs on the right. Count me a skeptic. And that’s not only, or even primarily, due to uncertainty about how the justices will rule. Big Government’s attempt to usurp control of the health-care sector, and all the control over our lives that would entail, poses the question of what kind of political society we are to be. That is not a legal question. The court case is significant, but secondary. This is a political issue.

Of course, the justices must resolve the constitutional claims that have been leveled against the risibly titled “Affordable Care Act” (ACA or Obamacare). And if Obamacare is unconstitutional, that is the end of the matter — if the Constitution forbids the ACA, its policy implications are irrelevant.

Yet, the reverse is not true: Even if the Court concludes that Obamacare is a valid exercise of congressional power, it will still be horrific policy. That is the point. We have a Constitution for a free people. It empowers the people’s elected representatives to do all manner of ruinous things, but that does not mean those things ought to be done. Obamacare is not an issue on which the justices should be the final word. By lowering their sails once the legal armada streamed to the rescue, congressional Republicans have abdicated their responsibility, foolishly raised the stakes of the judicial proceedings in the public mind, and sold short the Right’s best issue in the 2012 presidential campaign.

There have now been a number of judicial rulings invalidating some or all of the ACA. But once there was even a single one, Supreme Court consideration of the statute’s constitutionality became inevitable. In that sense, the fact that we’ve gotten to this stage is cause for at least muted celebration.

Let’s imagine, though, that all the court challenges had failed. The legal affirmation of Obamacare would have been far from the end of the battle. Moreover, it is anything but clear that the mixed bag of appellate rulings to date has improved the battlefield on which the more critical post-litigation fight will be waged. That fight, not the court fight, is the endgame for limited-government conservatives who aspire to a more free-market-oriented health-care system — one in which we can control our own destinies.

The overturning of Obamacare by judicial means would be a good thing. But that is only because Obamacare is so bad for the country: Its overturning by any lawful means would be preferable to its implementation. Still, a judicial invalidation would be very far from the best way to achieve repeal. And tactically speaking, the nearly exclusive reliance on the justices to do the right thing is extraordinarily foolish. What Obamacare needs now, what it has always needed, and what it will continue to need after the Supremes issue their ruling next year is a political repeal — and a replacement that rejects the premise that medical care is a corporate asset of which Leviathan should manage (i.e., ration) the distribution. 

This is why many of us are so frustrated with congressional Republicans. And I should add that my energetic if less than scientific canvassing of some of our most loyal readers on this week’s NR cruise confirms that “frustration” is a gentle way of putting it. As Ohioans demonstrated on Election Day, opposition to Obamacare remains very strong. In a state Democrats rightly regard as the 2012 battleground, and into which the Left poured the fortune of Croesus to repeal Gov. John Kasich’s collective-bargaining reforms, the Obamacare mandate lost big. Even with highly motivated public-union employees (a building block of Obama’s base) turning out in droves, the president’s signature achievement got a resounding thumbs-down. The message from House Speaker John Boehner’s backyard could not be clearer: The American people do not want more radically socialized medicine — the government has already done quite enough, thank you very much, to undermine the world’s greatest health-care system.

So with the wind at its back, why isn’t the GOP attacking? Beats me. Yes, it is true that House Republicans admirably forced and won a vote to repeal Obamacare shortly after taking control of the chamber. It was done in fulfillment of a commitment in their “Pledge to America” during the 2010 campaign. In light of the Pledge items that have since fallen by the wayside, I suppose we should be grateful for that. Alas, the repeal measure then went to the Senate, where good policy goes to die, and that was that.