The Supreme Court’s decision to take up the challenges to Obamacare is certainly good news for the law’s opponents. At the very least, a decision next year would put Obamacare front and center in the heart of election season when the Democrats would like nothing better than to pretend that Obama’s first two years did not exist. At most, it could also dramatically weaken and undercut the statute itself, helping to clear the way for its repeal.
But opponents of Obamacare should be careful not to let their focus be drawn away to the legal arena—as if the question at the core of the debate is whether the individual mandate is constitutional. That is an important secondary question, but it is not where the future of our health-care system will be decided. The mandate probably isn’t constitutional, and so it should be overturned, though I think it is far from given that the Supreme Court will strike it down (for reasons well articulated by Eric Claeys here). And the mandate is also terrible policy (if you’ve designed a market which even in theory will only function if participation is mandatory, you have designed a market that will never function in practice.) But for all its faults, it is by no means the most serious problem with Obamacare. The key problem is the overall concept—which begins from the premise that our system of health-care financing will only keep costs under control if the government becomes an even greater force in the health sector than it is now and proceeds to create a system that will cause premiums to rise rapidly in the individual market and create major dislocation in the employer market, driving people into vastly overregulated exchanges that would push premiums higher still, and then initiate a program of subsidies whose only real answer to the mounting costs of coverage will be to pay them with public dollars and so inflate them further. It aims to spend a trillion dollars on subsidies to large insurance companies and the expansion of an unreformed Medicaid system, to micromanage the insurance industry in ways likely to make it even less efficient, to cut Medicare benefits without using the money to shore up the program or reduce the deficit, and to raise taxes on employment, investment, and medical research. CBO does not expect it to make a real dent in the inflation of health-care costs or to avert the fiscal implosion of Medicare. Instead, it will double down on price controls and centralized administration and make a real reform of our system much more difficult.
Maybe one part of the way it aims to do so is also unconstitutional, and maybe that opens it to a Court challenge. By all means, let’s pursue every avenue and let us make sure that our laws are in their proper relation to the Constitution. But the core case against Obamacare must be a sustained political case made on policy grounds, and the means to undo the law as a whole and pursue real reform will present themselves not next summer when the Court rules but next fall when the public does. Let us not forget it, and not lose our focus and resolve.