The tenor of the Justices’ arguments yesterday certainly primed the public for a historic ruling, but Obamacare is likely doomed no matter what the Supreme Court does. Obamacare is likely to create a disaster in the insurance industry even if the Supreme Court upholds the law in its entirety, as the experience of the failed 1990s state reforms shows. So even if it survives the Court challenge, Obamacare could be closer to repeal than most people think.
If the Court strikes down the individual mandate, however, we could have one of three scenarios: The Court could (1) strike down the entire law, (2) uphold the rest of the law, or (3) strike down some combination of core provisions. Each of those scenarios has benefits. If the Court strikes down the whole law, we solve the whole problem of Obamacare and can finally get back to market-based reforms. If the Court upholds the rest of the law, the insurance companies will scream bloody murder, and would likely get Congress to repeal the whole law, or at least its core provisions. If the Court strikes down only some provisions along with the mandate, we will be left with a shell of a law that no Congress ever passed and none ever would have passed.
The Court is most likely going to uphold the Medicaid-expansion provisions of Obamacare, but the controlling precedent — South Dakota v. Dole
(1987) — is fatally flawed. Even if the Court upholds the Medicaid provisions, it should replace the standard of Dole
with a workable standard that protects the states against federal coercion.
When all is said and done, conservatives can’t simply hope for the defeat of Obamacare. We must fight for the freedom to implement state-based solutions so that we can experiment with real common-sense, market-based reforms that ensure access to affordable health care for all Americans. To misappropriate Winston Churchill, defeating Obamacare “is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” This war, however, will only be won when have turned America away from its headlong rush to become a bankrupt entitlement state, and back to the principles of self-reliance and limited government that made our country great.
— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.
Anything can still happen. As I wrote the other day, it would be premature for conservatives to celebrate. But I’ve gone from thinking that there was nearly zero chance that the Court would strike down the whole law to thinking it could be close to a 50/50 proposition. The Court clearly understands that, if it strikes down the mandate and a few related provisions, they could be creating a huge mess that will severely disrupt the American health-care system. I was also struck, as everyone else has been, by how receptive Justice Kennedy seemed to the argument that the mandate is unconstitutional. Conservatives are justifiably optimistic about what could happen in June.
I would simply say that we need to be prepared for all outcomes. If the Court upholds the law, we need to work that much harder on repeal. If the Court only repeals the mandate and possibly a few closely related provisions, we need to begin explaining to people how problematic the rest of the law still is. And if the law is thrown out entirely, we need to do the hard work of articulating our own free-market solutions to the many problems our system faces, so that no one will ever again think that we need a law like Obamacare.
— Avik Roy is a senior fellow at the Manhattan Institute and the author of The Apothecary, the Forbes blog on health-care and entitlement reform. You can follow him on Twitter at @aviksaroy.