By Andrew C. McCarthy
http://www.nationalreview.com
November 19, 2011
Of course, the justices must resolve the constitutional claims that have been leveled against the risibly titled “Affordable Care Act” (ACA or Obamacare). And if Obamacare is unconstitutional, that is the end of the matter — if the Constitution forbids the ACA, its policy implications are irrelevant.
Yet, the reverse is not true: Even if the Court concludes that Obamacare is a valid exercise of congressional power, it will still be horrific policy. That is the point. We have a Constitution for a free people. It empowers the people’s elected representatives to do all manner of ruinous things, but that does not mean those things ought to be done. Obamacare is not an issue on which the justices should be the final word. By lowering their sails once the legal armada streamed to the rescue, congressional Republicans have abdicated their responsibility, foolishly raised the stakes of the judicial proceedings in the public mind, and sold short the Right’s best issue in the 2012 presidential campaign.
There have now been a number of judicial rulings invalidating some or all of the ACA. But once there was even a single one, Supreme Court consideration of the statute’s constitutionality became inevitable. In that sense, the fact that we’ve gotten to this stage is cause for at least muted celebration.
Let’s imagine, though, that all the court challenges had failed. The legal affirmation of Obamacare would have been far from the end of the battle. Moreover, it is anything but clear that the mixed bag of appellate rulings to date has improved the battlefield on which the more critical post-litigation fight will be waged. That fight, not the court fight, is the endgame for limited-government conservatives who aspire to a more free-market-oriented health-care system — one in which we can control our own destinies.
The overturning of Obamacare by judicial means would be a good thing. But that is only because Obamacare is so bad for the country: Its overturning by any lawful means would be preferable to its implementation. Still, a judicial invalidation would be very far from the best way to achieve repeal. And tactically speaking, the nearly exclusive reliance on the justices to do the right thing is extraordinarily foolish. What Obamacare needs now, what it has always needed, and what it will continue to need after the Supremes issue their ruling next year is a political repeal — and a replacement that rejects the premise that medical care is a corporate asset of which Leviathan should manage (i.e., ration) the distribution.
This is why many of us are so frustrated with congressional Republicans. And I should add that my energetic if less than scientific canvassing of some of our most loyal readers on this week’s NR cruise confirms that “frustration” is a gentle way of putting it. As Ohioans demonstrated on Election Day, opposition to Obamacare remains very strong. In a state Democrats rightly regard as the 2012 battleground, and into which the Left poured the fortune of Croesus to repeal Gov. John Kasich’s collective-bargaining reforms, the Obamacare mandate lost big. Even with highly motivated public-union employees (a building block of Obama’s base) turning out in droves, the president’s signature achievement got a resounding thumbs-down. The message from House Speaker John Boehner’s backyard could not be clearer: The American people do not want more radically socialized medicine — the government has already done quite enough, thank you very much, to undermine the world’s greatest health-care system.
So with the wind at its back, why isn’t the GOP attacking? Beats me. Yes, it is true that House Republicans admirably forced and won a vote to repeal Obamacare shortly after taking control of the chamber. It was done in fulfillment of a commitment in their “Pledge to America” during the 2010 campaign. In light of the Pledge items that have since fallen by the wayside, I suppose we should be grateful for that. Alas, the repeal measure then went to the Senate, where good policy goes to die, and that was that.
But why one and done? There should by now have been many votes, reminding Americans of who owns this monstrosity. Democrats forced it down the throats of an angry, unwilling public, while Republicans gamely tried to stop it. That story cannot be told often enough. Several of the accounting shenanigans that Democrats employed to hide hundreds of billions in costs — legerdemain that would have made Jon Corzine blush — have since been exposed as the frauds that they are. Are Republicans content to have that fade from memory while the president uses his bully pulpit to paint the GOP as the enemy of Grandma, clean air, education, and apple pie?
Why not at least have another vote every time a lie in the Obamacare construct is brought to light — again, to remind Americans of how badly the Left wanted this one and how cynically the Reid/Pelosi legions played it? Barack Obama is going to be on the ballot next year, posing yet again as a pragmatic centrist. Isn’t it worth reminding voters as often as possible that beneath the thin veneer lies a committed hard-left ideologue whose views widely deviate from those of the American mainstream? Isn’t it worth reminding Americans that, if he wins, the president is certain to sprint back to his comfort zone — governing from the progressive extreme, not the right-of-center heartland — just like he did the last time?
The problem is not just Republicans’ passivity while a winning issue sits staring them in the face. Phlegmatic GOP leaders will not bestir themselves to address the Left’s obvious Obamacare strategy. Their inaction and lack of urgency help the president enormously.
True, it will be another two years before the main thrust of Obamacare takes effect, but that does not mean nothing happens until then. The financial and regulatory infrastructure is being built. The thousands of pages of statutory directives are already exploding into tens of thousands of pages of suffocating regulations. Americans and American corporations are making their arrangements in anticipation of the law’s implementation, in hope of avoiding paralysis when D-Day comes. Obamacare is being regularized; its architects are shaping expectations so that the public sees it as a fait accompli.
Every day the law’s evils are not highlighted is a day that makes eventual repeal less likely. Yet, while tea partiers and other mainstream Americans become ever more agitated, on Capitol Hill there is no vigor. Rep. Michele Bachmann and a handful of other House Republicans discovered that, embedded deep within the mammoth bill Democrats said had to be passed before we could learn what was in it, there was provision for over $100 billion to begin funding the law right away — not beginning in 2014 but beginning now. Yet they could not rouse Republicans to outrage, much less to a vote that would undo at least that offensive portion. Obamacare may not be open for business yet, but the fortress is under construction and Republicans appear content to pay for it, while mumbling about how they only “control one-half of one-third of the government.” (That it is the one-half of one-third from which every penny of government spending must originate and be approved seems not to matter.)
We conservatives get used to the fact that, even when it comes to matters of gargantuan importance like a government usurpation of a sixth of the economy, the GOP appears to have less than a sixth of the energy that the Left musters for comparable trifles. Just ask Bush attorney general Alberto Gonzales, who got run out of town two steps ahead of the lynch mob over nothing — the firing of a handful of patronage appointees the president needed no reason to fire. Democrats have no fear of being nakedly, aggressively partisan. But thanks to establishment consultants who warn that active opposition to a terrible law will be caricatured as insensitivity by the left-leaning media, Republicans are so fraidy-scared that lethargy has become their default position.
This syndrome gets even worse when litigation is involved. When you proceed from the premise that zeal is a four-letter word, nothing is more enervating than the prospect that judges will do your heavy lifting for you. In my random canvass on the cruise, “Remember McCain-Feingold!” had the ring of “Remember the Alamo!” Conservatives haven’t forgotten the lesson. Cravenly, too many congressional Republicans, along with President Bush, decided they could go along with a blatant violation of core political-speech rights. After all, why endure all that New York Times demagoguery about “money in politics”? Why do the responsible thing and make the case for First Amendment liberties when surely the Supreme Court would save the GOP by invalidating the law?
Of course, the Supreme Court did not invalidate much of the law, and the GOP got demagogued anyway. Now, with eerie similarity, congressional Republicans seem content to let the courts deal with Obamacare. And once again, it is no lock that the Supremes are going to save them.
By my count, there are four solid votes for upholding the ACA — the Court’s four leftists; Congress’s Commerce Clause power is the key to much that they hold dear. I know, I know, Justice Elena Kagan has a recusal issue: As Obama’s solicitor general, she was involved for a time in designing the law. Maybe she’ll shock us, turn out to be an ethical paragon, and step aside. But Supreme Court justices have a very wide berth in deciding whether their involvement in the subject matter of a case disqualifies them from ruling on the case. Call me crazy, but I suspect that upholding the crowning progressive achievement of the president who gave her this lifetime plum is one of the things she got appointed to do. Do you think Obamacare just might have been in the back of her mind during the confirmation hearing, at which she opined that Congress has the power to mandate that you eat your veggies?
I’m nowhere near as certain that the “no” votes number four, let alone five. Justice Kennedy is a wild card, especially when there are ways to split the baby — and with Obamacare, there are if you want to find them. As for the four reliably conservative justices, their general watch-word is restraint. They will not like the law, but they would also be the first to tell you that a judge’s job is not to legislate his preferences. Within broad parameters, the American people have the power, through their representatives, to enact stupid laws. “Dumb,” “freedom-killing,” and “financially ruinous” are not synonyms for “unconstitutional.”
It is black-letter law that courts must presume congressional acts are constitutional and invalidate them only if there is no plausible argument in their favor. I need no convincing that some, probably all, of the Court’s conservatives hate the Court’s Commerce Clause jurisprudence. I’m sure they believe Wickard v. Fillburn — the seminal and worst excess, dictating what farmers could grow for their own consumption on the theory that these activities affected the interstate market — was wrongly decided. But to believe the case was wrongly decided is not the same as concluding that the Court should reverse jurisprudence Congress has relied on throughout the ensuing three-quarters of a century. Nor is it the same as concluding that Obamacare is the straw that breaks the commerce camel’s back.
For what it’s worth, I’m persuaded that Obamacare is unconstitutional. I think (among other flaws) requiring Americans to purchase a commodity — forcing them to engage in commerce — is an intolerable extension of bad precedent. And the prudential stare decisis doctrine is not a good reason to preserve wayward jurisprudence. (Stare decisis is a doctrine only a Republican could love: It’s routinely ignored when the Left wants to clothe its pieties in constitutional raiment, but studiously invoked to abdicate from the work of undoing progressive desiderata.) Nevertheless, we’re not talking about what I would do. We’re making a prediction about what the justices will do. I hope they’ll invalidate the law, but I wouldn’t bet Filburn’s farm on it. There is a reason why some conservative judges, such as Judge Laurence Silberman of the D.C. Circuit, have upheld Obamacare.
There is also another ground for trepidation. As we’ve seen, the Court is reluctant to invalidate a bad law even in normal times. But this is not a normal time. The Obamacare case will almost certainly be decided in late June or early July. Striking down Obamacare would be seen as a rebuke of a troubled presidency’s defining accomplishment just as Obama’s reelection campaign enters the stretch run. The Supreme Court, particularly the conservative justices, abhorred being seen — extremely unfairly — as deciding the 2000 election. They don’t like being demagogued by the New York Times any more than congressional Republicans do, and it’s a fair bet they won’t want to go through that again — especially pitted against the same Alinskyite Organizer-in-Chief who shockingly lashed them before a national television audience during the 2010 State of the Union address (over the Citizens United campaign-finance case).
We owe a great debt to the state attorneys general and other conservative lawyers and foundations at the forefront of challenging Obamacare. Would that every interested party had their passion and skill. When the ACA was ramrodded through Congress, its lack of constitutional grounding was overlooked. The lawyers have given us what the shoddy legislative process did not: a weighty theory that Congress lacks the power to do what the ACA does. If that theory carries the day, Obamacare is dead — case closed.
Even if that happens, though, there is mountainous legislative work to be done if the central planning at the root of health-care dysfunction is to be addressed. And if the Supreme Court rules in favor of Obamacare, Republicans will then have to legislate in the teeth of what the media will paint as a ringing Supreme Court endorsement. Such a ruling would energize the Left, inflate President Obama’s gravitas in the eyes of moderates, and demoralize Obamacare opponents. It would dramatically undercut the Republican presidential nominee.
A final thought on GOP insouciance: If the fight is too much for Republicans now, do they really think it gets easier after the Supreme Court rules?
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.
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