The New and Even Worse Obamacare
The Court’s rewriting of the law strengthens the case for repealing it.


Yuval Levin

Combined, these two rather arbitrary acts of revision mean that if the CBO reassesses the law’s effect on the number of Americans without insurance (which it certainly will do) using the same methods it used originally, it is likely to find a much smaller reduction in the uninsured.

The scope of its projected reduction of the uninsured and the (already false at the time) assertion that it did not raise taxes on the middle class were of course essential to the bare and narrow passage of Obamacare. The law as the Supreme Court has rewritten it today would not have passed. It contains all of the many grave flaws that have made Obamacare so unpopular, and fewer of the elements that finally persuaded some wavering Democrats to hold their noses and vote for it.

The case for repealing the law is thus stronger than ever. And it would be made stronger still if it could be reinforced with a clear set of alternatives offered up by the Republican nominee for president. The shape of such reforms is perfectly clear — Mitt Romney has laid it out in general, and others have done it in far greater detail. It consists of a series of reforms (of our entitlement programs, of the tax treatment of insurance, of the individual-coverage market, and of insurance regulations) that would enable a real market in insurance, and enable all Americans to participate in it. Such a transformation of American health care need not be pursued in one fell swoop, and should not be pursued in one massive piece of legislation. But in this election season, conservative office-seekers and officeholders should make clear to the public that they have in mind a clear, achievable path to a health-care system that works for everyone.

The disaster of Obamacare has created an opportunity for such conservative reformers. It is after all perfectly easy to show that we can do better. And today’s decision only makes it easier to show voters why this law needs to go, and how that could be done. 

There is only one way. “Members of this Court are vested with the authority to interpret the law,” Chief Justice Roberts wrote in today’s opinion. “We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.” They can be, and they should be. Now let us see to it that they will be.

Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center and the editor of National Affairs