I’ve seen a meme going around, saying to the effect that now
that the Supreme Court has ruled on ACA, everyone on facebook gets to be a
legal scholar for one day. Quite true. I’m surprised at how many of my friends,
many of them non-political, have commented on the recent ruling upholding ACA,
otherwise known as “Obamacare,” as constitutional. So I thought I’ll play
along. I’m not really qualified to comment on the legalese of the ruling – I’m
an economist/consultant, not a lawyer – but I think I am able to proffer a
reasonable opinion on the political fallout of the ruling.
This wasn’t a total victory for Obama. Let’s construct a
short narrative. In 2010, the health care law gets pass. At the time, both
Congress and the punditocracy thought that there would be little substantial
challenges to the constitutionality of the law. I remember reading one
prediction, whereby a majority of surveyed law professors thought that the law
would be upheld 8-1, Thomas being the lone dissent. Over the past two years
since its passage, there’s been a small but growing conservative insurgency,
which argued that the law was unconstitutional. Their core argument was this:
the law creates a mandate to buy a private good, a power that the federal
Congress, acting under a system of enumerated powers, does not have. The court
agreed with this, giving conservatives a partial victory. Roberts, in his
ruling, writes that:
The Affordable Care Act is
constitutional in part and unconstitutional in part. The individual mandate
cannot be upheld as an exercise of Congress’s power under the Commerce Clause.
That Clause authorizes Congress to regulate interstate commerce, not to order
individuals to engage in it. In this case, however, it is reasonable to
construe what Congress has done as increasing taxes on those who have
a certain amount of income, but choose to go without health insurance. Such
legislation is within Congress’s power to tax . . .
So, Roberts agreed with the conservatives on the core,
ideological issue at dispute, but sidestepped it by ruling that Obamacare, and
the mandate, is a tax. He gave Congress no new powers and in-fact limited them
in abstract. A lot of conservative bloggers and scholars are saying that this
opens the door for a bunch of challenges to the federal government’s current
powers. Perhaps. I’m a bit more skeptical.
I’m always a bit hesitant on a deal that offers me potential benefits in
the longrun in exchange for very real pain in the immediate.
Politically, I think this helps the GOP. Low information
Democratic voters, thinking that the battle is now over, may fall into a bit of
lethargy, potentially depressing turnout. From my read through of right leaning
blogs’ comment roles, this has fired up both the physical and financial
enthusiasm among right voters. Observe that in the few hours after the
announcement, Romney collected over 1.5 million in donations. People arguing
that right wing turn out will be depressed because of the squishiness of Mitt
Romney are wrong. Right wing voters know that, much like the rebel alliance in
Star Wars, they have one chance to blow this thing up. Elect Romney (and a GOP
Congress) and repeal it. Difficult, but possible. I think it’s harder to say
what independents, who surprisingly strongly detest the bill, will do. Two
possible outcomes. First, they rally to Romney in order to get the bill
repealed. Voters who might be skeptical of Mitt on other issues, social issues
in particular, may bite the bullet now that they have a tangible reason to vote
for him. Or, independents could consider it a loss battle, and return their
focus to the economy and other issues.
Finally, there is one big, open question left. Did Roberts
make this easier to repeal? I’m not that brushed up in the pedantic nuances of
Congressional rules, but I think, and I may be wrong, that tax votes don’t
require the 60 vote cloture proof majority in the Senate. This means, and this
is important, that repeal could be achieved with only 50-51 votes, assuming a
Romney presidency. Since it’s now a tax, can it be repealed as a tax?
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