Critical Condition

NRO’s health-care blog.

Ruling Proves Obamacare Opponents Should Rely on Politics, Not the Courts


Yesterday’s ruling by a D.C. Circuit Court panel will have little (if any) effect on how the Supreme Court will ultimately rule on Obamacare.  But it provides further evidence that the overwhelming majority of Americans who oppose Obamacare shouldn’t entrust this nation-defining issue to the courts. 

Of course, that’s not to say that we shouldn’t hope for a favorable verdict. There are six ways that the Supreme Court could presumably rule on Obamacare. It could (1) let all of it stand, ruling that the individual mandate is a legitimate exercise of Congress’s power to regulate interstate commerce; (2) let all of it stand, ruling that the individual mandate isn’t really a mandate but a tax, which is justified under Congress’s taxing power; (3) strike down the individual mandate but let everything else stand; (4) strike down the individual mandate and also the “guaranteed issue” and “community rating” provisions that rely on the mandate to function; (5) strike it all down; or (6) decide that the 26 states who claim that Obamacare is unconstitutional lack standing or the Court lacks jurisdiction. 
Two of the three judges on the Circuit Court panel chose the first option, while the other dissented from the panel’s opinion and chose the sixth. In going with the option #1, the circuit court panel essentially declared that Congress not only has the power to regulate commerce but to compel it. It has the power to require Americans to buy products of the federal government’s choosing — at least when the government (and the judiciary) thinks that the market in which the product is to be purchased “is a rather unique one” that “virtually everyone will enter” or else cause “disproportionate harm” by not entering. In addition to sanctioning a truly frightening level of federal power, how’s that for an exact standard of constitutional adjudication?
Above all, the D.C. ruling serves as a welcome reminder that the coalition of Republicans and independents (and a smattering of Democrats) who oppose Obamacare shouldn’t rely on the courts — and ultimately the Court — to take care of the matter. Relying on the Court is like rolling one die and hoping that the either a 4 or a 5 comes up (as those are the only two of the six potential rulings that would provide an even remotely satisfactory result). (Number 3, which entails having the Court strike down the individual mandate but nothing else, wouldn’t reduce the importance of a political resolution whatsoever.)
There’s only one sure way to spare ourselves and our offspring from Obamacare — and that’s to repeal it. Maximizing the chances that this will happen requires having a Republican nominee who’ll make repeal a centerpiece of the campaign and can speak persuasively about why Obamacare is the worst piece of legislation in any of our lifetimes. It will require that nominee to win. And it will require the newly inaugurated GOP president to show somewhere near as much willpower to get repeal legislation through the Senate as President Obama showed in imposing Obamacare on the country. 
Victory lies through the political process. Far too much is at stake to rely on the Court.


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