High Court Hopes
Now that the oral arguments are over: What should SCOTUS do?


Yes, Obamacare is “unprecedented” — an unprecedented federal power grab. If allowed to stand, the law would steadily shift immense control over the entire health sector from states, employers, private companies, and individuals to federal bureaucrats. And once the big changes scheduled for implementation in 2014 are set in motion, they will be very difficult to reverse later.

So what needs to happen is pretty obvious — full repeal, and the sooner the better. But that’s not all. Congress also needs to replace Obamacare with a program that is affordable and relies on market-based consumer choice, not government coercion.

The Supreme Court can and should do the first part of the job — repeal. As we have heard this week, there are strong reasons to strike down both the individual mandate and the Medicaid expansion on constitutional grounds. And if those provisions are struck, it will be near impossible for the justices to rationally decide which other provisions should remain in place, given the political and policy compromises that were made in Congress to assemble the law in the first place.

Though this week has gone well in terms of oral arguments at the Court, conservatives should not get complacent with respect to either repeal or replacement. If the Supreme Court upholds the law, it will be necessary to repeal and replace Obamacare in the legislative process. And if Obamacare is struck down in whole or part by the Court, Congress will still need to finish the job by replacing whatever is left standing with a workable program that is consistent with the Constitution and that will solve the problems voters want addressed.

The Supreme Court should be a trusted defender of our constitutional liberties. But that does not absolve Congress of the responsibility to replace Obamacare with a sensible, constitutional, and affordable reform plan for American health care. Done right, such a plan would effectively close the door on the kind of ideological power play in the health sector that Obamacare represents.

 — James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director at the Office of Management and Budget from 2001 to 2004.

I have mixed feelings.

I have long been partial to the views of the early nationalists: Madison’s original “Virginia Plan” called for vast congressional powers, to “legislate in all cases . . . in which the harmony of the United States may be interrupted.” For two centuries, economic conservatives have promoted national unity by facilitating commerce and private property, which requires a powerful national government. This leaves me somewhat sympathetic to the argument advanced by the government.

Still, Obamacare is a symbol of what is wrong with our system. After a 2008 presidential campaign that could have been a season of American Idol, a poorly informed electorate rashly selected a pseudo-celebrity left-winger posing as a bipartisan healer over a war hero with an actual record of bipartisanship. Similarly, the country fell for the rhetoric of seemingly moderate “New Democrats,” never realizing that they are actually led by hack machine pols from the big cities and crusty old Sixties radicals. 

In both cases, the people should have known better. None of what has happened in the last three years is a surprise to anybody who paid close attention in 2008.

So in a lot of respects the people have gotten what they deserved. They brought this misery on themselves by their stubborn inattention to even the most basic of civic details. Why should they expect the Supreme Court to bail them out for their indolence? Ultimately, the people are responsible for Obamacare, so let them take care of it. Let them finally start paying attention to the unholy mess that is Washington, D.C., and do the hard work that is required of citizens of a republic.

But I have no expectation that the people will rediscover civic virtue until after disaster strikes, and I personally do not want to pay the costs of this monstrosity. Thus I am rooting hard for the Court to strike it down. I prize the wellbeing of my family over Hamiltonian nationalism!

— Jay Cost is the author of the forthcoming Spoiled Rotten: The Story of How the Democratic Party Embraced Special Interests, Abandoned the Public Good, and Came to Stand for Everything It Once Opposed.