Thursday, June 28, 2012

In which I pretend to be a legal scholar.


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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