Politics & Policy

What’s Next for the Opposition?

Protesting against Obamacare outside the Supreme Court, June 28, 2012
After SCOTUS ruled

Now that the Supreme Court has ruled on the individual mandate, what’s next for both conservatives and the Republican party on health-care reform?

BRIAN BURCH

Thursday’s ruling means that the November elections are a referendum not just on President Obama’s poor handling of the economy, but now also on the fate of his signature piece of legislation, including, not insignificantly, his assault on religious liberty.

There’s a lot of talk about the insurance mandate, but in upholding the Affordable Care Act, the Court also preserved the other mandate — the one imposed by Kathleen Sebelius and personally signed by President Obama. That’s the HHS mandate, which would bury virtually every Catholic hospital, school, and charity in an avalanche of fines unless they provide health services that directly violate their church’s teachings.

#ad#Only one man in the last 40 years has been elected president without a majority of the Catholic vote. Even those Catholics who oppose elements of Church teaching don’t want the federal government forcing their Catholic school to provide sterilizations and abortion pills, which the HHS mandate would require. That’s why a majority of Catholics favor a clear exemption to the HHS mandate.

But President Obama has refused to grant a workable exemption to Catholic institutions and instead has sought to define the very criteria for what constitutes a religious group. And that’s why states with significant Catholic populations, such as Michigan, Wisconsin, and Pennsylvania, have suddenly become swing states. If Romney were to win just one of these states, it’s hard to imagine a scenario where Obama wins reelection.

The Catholic vote is very much in play. Governor Romney must make the case that the only way to start fresh and reform health care in a way rooted in moral principles and sound economics is to elect him president on November 6.

— Brian Burch is president of CatholicVote.org.

VERONIQUE DE RUGY

In the aftermath of the Supreme Court ruling, emotions run high on both sides of the political spectrum. I think it will take some time to figure out what the consequences of this ruling will be. One thing is sure: The government isn’t shrinking.

First, I am not a legal scholar, but I certainly hope that Randy Barnett (effectively the intellectual father of the legal challenge to the constitutionality of the health-care law) is correct when he writes:

Today, the Roberts Court reaffirmed the “first principle” announced by Chief Justice Rehnquist some 17 years ago in Lopez: “The federal government is one of limited and enumerated powers.” It accepted all of our arguments about why the individual insurance mandate exceeded the commerce power: “The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” wrote Chief Justice Roberts. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.”

According to Barnett, what we got today is a victory for federalism — granted, a weird one — or, as others have said, the president won the policy battle, but Justice Roberts won the war. One kept his very unpopular but signature law, and the other established limits on the Commerce Clause. I guess we will see about that.

However, even if this is true, it looks as if what we gained on the Commerce Clause side we may have lost on the tax side. Doesn’t this ruling effectively expand the power of Congress to regulate whatever it wants once it slaps a “penalty” on it and then defends it on the ground that it is actually a “tax”? Isn’t the distinction between tax and regulation a pure fiction, given that, in the end, we get a severe encroachment on our freedom either way? The government is already overreaching at every turn, and this ruling adds insult to injury.

Second, the fiscal impact of the decision is unclear. On the spending side, our financial outlook is dark, because the ruling keeps in place a health-care law that will increase spending dramatically. As my colleague Chuck Blahous has shown, once we look past the budget gimmick and double counting, “over the years 2012–21, the ACA is expected to add at least $340 billion and as much as $530 billion to federal deficits while increasing federal spending by more than $1.15 trillion over the same period and by increasing amounts thereafter.”

That’s not surprising. Unlike the claims made by advocates of the law, the government can’t create a system that will reduce costs while increasing access and services. As libertarian presidential candidate Gary Johnson explains, “Only competition and the price transparency that competition will bring can accomplish the imperatives of affordability and availability. Whether it is the president’s plan, or the Republican prescription drug benefit, the idea that anyone in Washington can somehow manage one of the most essential and substantial parts of both our quality of life and the economy is, and always has been, fundamentally wrong.”

However, it is clear that since this is a tax, the president has now officially broken his promise not to raise taxes on the middle class. According to previous CBO data , 3.9 million people total will pay the tax — 3 million of those (77 percent) will be below 500 percent of the Federal Poverty Level (FPL), which is $52,000 for an individual. That $4.2 billion in taxes that will be collected, $1.9 billion (45 percent) of which will be paid by taxpayers under 500 percent FPL.

Now there is also another uncertainty: What will be the impact of the Court’s ruling that states can opt out of the health-care law’s Medicaid expansion? In principle I see the limitation imposed by the Court as a good thing, but it could have some serious fiscal implications. As Avik Roy explains at Forbes, by allowing states to opt out, SCOTUS may have paved the way to dramatically increased deficits. Individuals who would have received coverage through Medicaid, but who won’t if their states opt out, may now be eligible for subsidies under the exchange, which is more expensive. Under this scenario, taxpayers will pick up the tab.

In the end, however you look at it, this ruling leaves us with a bloated government, too much spending, too much debt, less freedom, and a system that doesn’t even take care of poor people that well.

— Veronique de Rugy is a senior research fellow at the Mercatus Center at George Mason University.

#page#JAMES COPLAND

From a policy standpoint, Obamacare remains the disaster it was before Thursday’s decision. From a legal standpoint, those interested in conservative legal principles generally, and in federalism specifically, have more to cheer than it would first appear.

When John Roberts and Samuel Alito joined the Supreme Court in the place of William Rehnquist and Sandra Day O’Connor — who, in addition to Justice Thomas, were the Court’s most committed federalists — it was an open question whether the Court would hew to its significant 1990s federalism decisions, which had, to liberal chagrin, (1) kept Congress from applying the Commerce Clause to non-economic activity, (2) kept Congress from applying the Commerce Clause to create private rights of action against states, and (3) prohibited Congress from “commandeering” states to act according to federal dictate.

#ad#Thursday’s decision resoundingly reaffirms the Court’s commitment to federalism and extends that line of cases in two ways. To begin with, by a 5–4 majority, the Court decided that the Commerce Clause cannot be applied to economic “activities” of omission (i.e., inactivity). Secondly, and strikingly, the Court finally placed limits on Congress’s ability to coerce states to act through conditional use of the federal spending power. Finally drawing a line suggested in the 1987 case South Dakota v. Dole, but never previously invoked, the Court at least partially closed the obvious loophole in the commandeering and Commerce Clause cases — namely, Congress’s ability to coerce state action by limiting access to the federal piggy bank.

The decision does highlight Congress’s broad taxing power, but that was the case before Thursday, too: Under the broad grant of the Sixteenth Amendment, Congress already can and does penalize us for acting or not acting in hosts of areas, including such sacred realms as getting married or having children.

— James Copland is the director of the Center for Legal Policy at the Manhattan Institute.

CHRIS CHOCOLA

The Republican party should continue to push for full repeal of Obamacare and work to replace it with market-based solutions that will bring down costs and increase quality. Anything less is unacceptable. This election is going to be about the choice between the Democrats, who want to increase government intrusion into nearly every aspect of our lives, and fiscal conservatives who believe that America should be like America, not Europe. The stakes couldn’t be higher.

— Chris Chocola is president of the Club for Growth.

CHARLES A. DONOVAN

The cold water from Chief Justice Roberts and the Supreme Court Thursday on the constitutionality of the individual mandate in Obamacare is, to say no more, a familiar drink. Conservatives are not often rescued from public-policy folly by the judiciary, and now it is clear that, if rescue is to come, it must be by the blood, toil, sweat, and tears of sharp policymaking and tireless grassroots action, not by a master stroke from the Court.

The immediate impact of this ruling is, or ought to be, to unite fiscal and social conservatives in resistance to both the macro effects of the Affordable Care Act (ACA) and its dozens of noxious micro provisions. Already it is a tad disappointing to see some leading opponents of the law cite only its impact on small businesses or the economy. President Obama has said he means to be a “transformative” president. Adding one more costly benefit to businesses is not what he is referring to.

The transformational impact of the ACA is society-wide, and intentionally so. It aims to weaken every institution of civil society that competes with the national government and its goals. It weakens parents through its many provisions that deny them health-care-insurance options and that provide their children with “reproductive services” that the parents may regard as injurious. It weakens churches by directly threatening their social-service outreach (irrespective of their public-funding status) and denying them the civic expression of their creed. It weakens the insurance industry itself, transforming it into a public utility with a limited range of options. It makes the national government the ultimate arbiter of what is, and is not, health itself.

The collectivization of health care into a creature of national purpose and the ransacking of the (already ransacked) national treasury took a massive step forward Thursday. For conservatives of all stripes, and friends of true liberty of every hue, we have four months to regroup and reclaim lost ground. If we apply ourselves and pursue, on principle, policies that expand the role of every player in civil society, we will enlist every hand available to our cause, and a pathway to success will open.

— Charles A. Donovan is president of the Charlotte Lozier Institute.

#page#JOHN C. GOODMAN

The Supreme Court’s ruling Thursday on the Affordable Care Act was a stunning disappointment.

As a result, Americans will be required to purchase health insurance or pay a penalty. People will not go to jail for refusing to pay the fine, but the IRA will withhold their tax refunds.

#ad#Did we ever need the mandate at all? The answer is no, not if we do health-care reform the right way. Congress should proceed with repealing the ACA, but replace it with universal health-care coverage without any mandates. Ironically, candidate Barack Obama opposed the individual mandate but supported universal coverage. Unfortunately, he abandoned both ideas.

By following the McCain/Coburn/Ryan approach, Congress can implement universal coverage. Offer every American a refundable tax credit that is the same amount regardless of where the insurance is purchased: in the workplace, in a health exchange, or in the marketplace. For instance, we can afford to offer a $2,500-per-adult tax credit, or an $8,000 credit per family. The unclaimed tax credits go to fund the so-called safety-net programs so that there is an adequate amount of money for everybody.

— John C. Goodman is president of the National Center for Policy Analysis and author of Priceless: Curing the Healthcare Crisis.

SAMUEL GREGG

Leaving aside the arguments that will continue about the SCOTUS ruling on Obamacare, one response of those who favor free markets and limited government must be for them to start preparing themselves for what will eventually happen, regardless of the results of the 2012 presidential election. And that’s Obamacare’s eventual economic demise. The economic track record of socialized medicine is very clear. Sooner or later, it implodes. Britain’s National Health Service is a perfect example. Even Sweden has realized that socialized medicine (and generous welfare states more generally) are unaffordable in the long term, and it has begun allowing private providers into its health-care market. In short, Obamacare’s essential economic unfeasability and extensive bureaucratization of health care (not to mention its disproportionately negative impact on the poor) will become all too clear in time. When that happens, conservatives must have off-the-shelf plans ready to go in order to restore sanity to the asylum of socialized medicine.

However, it’s also plain that conservatives, beyond citing the raw economics of real health-care reform, must ballast their case against socialized medicine with moral and cultural arguments. Far too many conservatives and free marketers critique socialized medicine almost solely in terms of efficiency and effectiveness. Economic analyses and arguments are important, but not many people will put everything on the line for a calculus of utility. Instead, critics must draw attention to the ways in which socialized medicine (1) saps personal responsibility, (2) facilitates the spoiled-brat entitlement mentality presently reducing much of Europe to an economic laughingstock, and (not least among such concerns) (3) creates an impossible situation for those of us who on grounds of faith and reason cannot and will not participate in schemes that legally require us to cooperate in other people’s choices for moral evil.

We can win numerous economic arguments. In some respects, that’s actually the easy part. But until we decisively shift — and win — the moral debate, the battle will be uphill all the way.

— Samuel Gregg is research director at the Acton Institute. He has authored several books including On Ordered Liberty, his prize-winning The Commercial Society, Wilhelm Röpke’s Political Economy, and his 2012 forthcoming Becoming Europe: Economic Decline, Culture, and America’s Future.

#page#REGINA E. HERZLINGER

Let’s get serious about cost control with something more than the standard Republican Band-Aids. Health-care costs are already killing the economy — they are not only the highest in the world but also grow at the highest rates. And that’s not counting trillions in unfunded Medicare liabilities.

The subsidies in Obamacare will swell these costs by at least a trillion dollars. And its futile cost controls involve either rearrangements of the deck chairs on the Titanic (oligopolistic, unfeasible Accountable Care Organizations, for example) or gross governmental usurpations of the citizenry’s economic rights (for example, the Independent Payment Advisory Board, which will allow a handful of people, rather than the American public, to cap health-care expenses).

#ad#Switzerland shows how to achieve universal coverage and excellent health care with the lowest cost growth relative to GDP among developed nations. The key? Consumers, not governments or employers, control the purse strings of the Swiss health-care system.

The resulting competition for customers lowered the average private Swiss insurer’s general and administrative expenses to 5.1 percent versus 11.1 percent for insurers in the U.S., and the competition also controlled growth rates. From 2000 to 2008, the compound annual growth rate (CAGR) of Swiss health-care expenses relative to GDP plummeted to 1.1, after Switzerland dropped its prior employer-based system, from 1.7 in the decade before. In contrast, the CAGR of U.S. health-care costs relative to GDP is 1.65.

We can achieve Swiss results simply by enabling employees who choose to receive risk-adjusted cashouts from their employer-sponsored insurance to deduct the amount they spend on health insurance from their taxes. This consumer-driven system will not only control costs but also, finally, raise worrisomely flat U.S. after-tax incomes (and tax revenues) for those who prefer marginal income to health-insurance coverage.

— Regina E. Herzlinger, the McPherson Professor of Business Administration, Harvard Business School, is the author of Market-Driven Health Care and Who Killed Health Care? and the editor of Consumer-Driven Health Care

QUIN HILLYER

Conservatives and the Republican party are now left scratching their heads about how somebody as usually clear-headed as Chief Justice Roberts could produce a decision replete with such stunningly convoluted and unpersuasive reasoning. The practical result is that all of us must now carry the fight politically — and with intelligence and energy. To do that, we must do a far better job explaining what our alternative to the president’s health-care monstrosity would look like, and why it would better serve individual Americans.

Alas, this is anything but a strong suit for presidential candidate Mitt Romney. The survival, for now, of Obamacare makes it imperative either that he choose a running mate expert in this issue, and in explaining it — somebody such as Bobby Jindal or maybe Paul Ryan — or that he publicly designate a respected point person on health care.

Second, we should redouble our efforts to support, both in public discussion and in all legal and financial ways possible, the important points that the constitutionality and morality of Obamacare remain in serious doubt on two other fronts: the unaccountable, extra-constitutional Independent Payment Advisory Board and of course the religious-liberty-destroying HHS abortifacient-contraceptive mandate. We must explain that the only way to short-circuit the continuing constitutional uncertainty is to repeal the whole darn law and start over. The American public wants health-care solutions, not the paralyzing confusion and intrusiveness of Obamacare.

— Quin Hillyer is a senior fellow at the Center for Individual Freedom.

#page#DAVID B. KOPEL

The constitutional model for what to do with the individual mandate comes from the Democratic party — the Democratic party of Andrew Jackson, who showed that a Supreme Court decision is not the end of public discussion of the constitutionality of a government program that favors special interests over the public interest.

In the famous 1819 case of McCulloch v. Maryland, the Supreme Court upheld the constitutionality of the Second Bank of the United States. Although McCulloch settled the issue for the judicial branch, the bank never ceased to be politically controversial. In 1832, President Jackson vetoed the recharter of the bank. His veto message quoted McCulloch, explaining the principle that the president and Congress had their own duty to make decisions about constitutional necessity. After a titanic political struggle over the next several years, Jackson and the Democrats won, and the bank expired.

#ad#In the constitutional judgment of Jackson and his allies, the bank was a tool of special favors for some, thereby violating government’s duty to provide “equal protection” for all. So great was Jackson’s victory that the United States remained free of a national bank for the rest of the century. That is one reason that America enjoyed such strong economic growth.

Even when the Federal Reserve was established under Woodrow Wilson in 1913, the memory of the “Bank battle” was still so strong that regional reserve banks were established, rather than a single central bank.

The weakest part of Chief Justice Roberts’s opinion is his assertion that the individual mandate merely “makes going without insurance just another thing the Government taxes, like buying gasoline or earning income.” To the contrary, earning income or buying a product is an activity that can constitutionally be subject to an “excise” tax. There is literally no constitutional or tax-law precedent for the notion that an individual can be subject to an excise tax merely for choosing not to buy a product.

Presidents and members of Congress take oaths to uphold the Constitution, and some of them take that oath seriously. Faithful to their oaths, a new Congress and a new president can repeal the individual mandate not only because it is bad policy, but also because they rightly consider it unconstitutional.

— David B. Kopel is Research Director of the Independence Institute and an adjunct professor of constitutional law at Denver University.

KATHRYN JEAN LOPEZ

The president’s health-care bill is now a tax bill? It’s the only way the chief justice of the Supreme Court could see it as constitutional? This exposes yet another aspect of the disingenuousness of the Democratic kamikaze mission to get this bill into law. We probably repeat it too often in these parts, but it was then–Speaker of the House Nancy Pelosi who said we’d have to pass the bill to know what’s in it — and find out what committee it should have gone through, it appears. Ways and Means missed its 15 minutes, it seems. Add to this the fact that the administration insisted the bill had nothing to do with abortion, a claim we now know to be false. And add to it the president’s assurance, in a speech at the University of Notre Dame, that the bill would protect conscience rights. Instead, Notre Dame has been forced to sue the federal government because its rights as a religious institution of higher education, and the conscience rights of all Americans, are under attack by the federal government, which has a new understanding of religious liberty. “Religious liberty” now means that a fine on faith is appropriate if the president and his fellow secular ideologues believe that your conscience is not fit for the public square.

— Kathryn Jean Lopez is editor-at-large of National Review Online.

#page#LARRY J. SABATO & KYLE KONDIK

It looks like Chief Justice John Roberts just issued a long written apology for screwing up the presidential oath in January 2009. Obviously, the Affordable Care Act was hanging by a thread, and the thread was named John Roberts. Anthony Kennedy wasn’t there for President Obama. The court’s decision to largely uphold the law kicks the issue back to the political arena, and both parties will continue to press their case on health-care policy as the election approaches.

The decision saves Obama from embarrassment and preserves his signature domestic-policy achievement. Meanwhile, Republicans will continue to criticize the law and promise to overturn it if given control of the government. In other words, Obama’s and Romney’s political arguments, at least in regard to health care, remain largely unchanged.

#ad#This decision energizes both party bases, but it will have no crucial effect on November. It is only June, and too many onlookers are drawing straight lines to the election.

Democrats got something to brag about to their troops, and Republicans got a renewed reason to work to install a GOP president and Congress. But what seems like a huge story Thursday probably won’t be as important as the election draws nearer. This election is still about the economy, and its performance will be the biggest factor in determining the result. People’s political opinions about health care are largely derived from their party ID; that means that the decision probably changed few minds, especially because the law was upheld. In the nation’s political environment, opinions on health care were already baked into the cake prior to the Court decision.

In the immediate reaction to the ruling, many declared that “everything has changed.” Actually, very little has changed. And that’s the whole point of the ruling.

— Larry J. Sabato and Kyle Kondik, University of Virginia Center for Politics.

ILYA SOMIN

Thursday’s 5–4 decision upholding the individual mandate is a painful setback, but also a partial vindication for those of us who worked to get the mandate struck down. Chief Justice Roberts’s opinion for the Court actually rejects the federal government’s most important arguments for the mandate: that it is authorized by the Commerce Clause and the Necessary and Proper Clause. It also reaffirms the need to impose limits on federal power and emphasizes that Congress does not have the authority to impose whatever mandates it wants. Yet Roberts then snatched defeat from the jaws of victory by ruling that the mandate is constitutional because it is a “tax.”

In the first part of his opinion, Roberts endorses the main argument the plaintiffs made against the mandate: that it is not authorized by the Commerce Clause because it does not regulate any kind of preexisting “economic activity.” The mandate “does not regulate existing commercial activity [but] instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.”

If Congress can “regulate individuals precisely because they are doing nothing,” it could impose almost any mandate it wants, including mandates to purchase broccoli, cars, or any other product. The Constitution, Roberts concludes, does not “bring countless decisions an individual could potentially make within the scope of federal regulation, and . . . empower Congress to make those decisions for him.”

So far, so good. But then the chief justice “empowers” Congress to do exactly that, by ruling that the mandate is constitutional because it is a tax. Roberts argues that the mandate is a tax because it imposes only a monetary fine on those who fail to comply, and because the fine does not apply to people too poor to pay income taxes and it is collected by the IRS. By that standard, pretty much any mandate can be magically converted into a tax simply by structuring it in the same way. As Roberts acknowledges, interpreting the mandate as a “tax” is not “the most natural” reading of the law, which calls the mandate a “penalty.” That’s because it actually is a penalty, which the Supreme Court defines as “an exaction imposed by statute as punishment for an unlawful act” or omission. The health-insurance mandate imposes a fine as punishment for the unlawful refusal to purchase government-mandated health insurance

Fortunately, Thursday’s closely divided decision is not the end of the debate over the scope of federal government power. The Court obviously remains closely divided on these issues, and future decisions might limit or even reverse the impact of Thursday’s mistake.

— Ilya Somin is an associate professor of law at George Mason University School of Law.

CAL THOMAS

Obama lied. His law is a tax according to no less an authority than Chief Justice John Roberts. Did anyone vote for a tax increase?

What liberals hope for is that sufficient numbers of Americans are addicted to government that they will vote for more “government drugs.” Are there remnants of liberty lovers who will vote this bunch out and then put in people who have the guts to stop the assault on our freedoms? We will soon know.

Already we are hearing from “grannies” and other people with sob stories who claim they can’t get help without government.

There are ways to fix the things that are wrong with medical care, but more government isn’t the answer. If anyone thinks government does a better job at almost anything than the private sector does, all he has to do is look at Medicare and Medicaid, which are going broke.

The taxes kick in after the election. Unless voters stop this fraudulent behavior, we will have lost a fundamental freedom that will be nearly impossible to recover. It is a dark day for America, and even for those Americans who rejoice over the Court’s decision but will live (or die) to regret it.

— Cal Thomas is a syndicated and USA Today columnist as well as a Fox News contributor.

NR SymposiumNational Review symposia are discussions featuring contributors to and friends of the magazine.

Most Popular

Film & TV

A Film for All Christians

‘The growing good of the world is partly dependent on unhistoric acts,” wrote George Eliot in Middlemarch, “and that things are not so ill with you and me as they might have been, is half owing to the number who lived faithfully a hidden life, and rest in unvisited tombs.” The passage provides the title ... Read More
Film & TV

A Film for All Christians

‘The growing good of the world is partly dependent on unhistoric acts,” wrote George Eliot in Middlemarch, “and that things are not so ill with you and me as they might have been, is half owing to the number who lived faithfully a hidden life, and rest in unvisited tombs.” The passage provides the title ... Read More
Law & the Courts

The FBI’s Corrupt Cops

White-collar criminals should hope for one thing this Christmas: that they get to live under the Horowitz rules. Michael Horowitz has testified that he found no evidence of political bias on the part of the decision makers who, under the Obama administration, relied on hilariously implausible “evidence” ... Read More
Law & the Courts

The FBI’s Corrupt Cops

White-collar criminals should hope for one thing this Christmas: that they get to live under the Horowitz rules. Michael Horowitz has testified that he found no evidence of political bias on the part of the decision makers who, under the Obama administration, relied on hilariously implausible “evidence” ... Read More