Will ObamaCare decision provide a redefining moment for federal power?

posted at 12:41 pm on June 26, 2012 by Ed Morrissey

Now that Mandate-mas has been firmly scheduled for Thursday, a few final analyses are now in order.  After all, between the Issa/Holder confrontation over Operation Fast and Furious and the Supreme Court, not much else is making news this week anyway, is it?  In my column for The Week, I game out the possible outcomes and predict their impact on the political landscape in this election season — and warn Republicans about the perils of static analysis if the court does the unexpected and upholds ObamaCare in its entirety:

To hear the way some critics talk, Obama finds himself in a no-win position. TIME‘s Mark Halperin argued on Monday, before it became apparent that the Supreme Court wouldn’t issue its decision until later in the week, that every outcome would be bad news for Obama. Halperin told Joe Scarborough on MSNBC’s Morning Joe that “a lot of Democrats” tell him the same thing. The idea is that the bill is so unpopular, even a win at the Supreme Court can’t turn it into a net positive for voters. Democrats on the campaign trail, Halperin said, “largely hide from it.”

Republicans had better not bet the house on that interpretation, although obviously, a large number of them believe it. It’s true that the ACA has remained remarkably unpopular, with some polls showing as many as two-thirds of the country wanting the Supreme Court to overturn the mandate or the whole bill. The mandate in particular rankles Americans, most of whom are stunned to think that the federal government can order them to buy a product at all, whether it be health insurance or broccoli, the counter example that has grown inexplicably popular as the horrific reductio ad absurdum of limitless government power. (Shouldn’t the worst-case scenario really be Brussels sprouts?)

But let’s get real: Assuming that a positive ruling from the Supreme Court would have no impact on the ACA’s popularity is quite a leap. Public opinion could easily change if the Supreme Court upholds the ACA and the mandate, especially if the vote is something other than a narrow 5-4. Such a decision won’t make ObamaCare popular overnight, but it might prompt some of those who disliked the bill for its reported unconstitutionality to rethink the matter. Many voters would similarly re-evaluate the Republican lawmakers who insisted that ObamaCare could not possibly survive constitutional scrutiny.

Given the oral arguments from March and the tea-leaf reading this week, I’d call that a slim possibility anyway.  The Supreme Court seems ready to strike down at least some portion of the PPACA on Thursday, and as I wrote in my column, those options are almost unrelentingly bad for Obama.  But will a partial overturning really settle anything?  Jonathan Adler and Michael Cannon argue that the court might be inclined to strike the whole thing, rather than endure years of continued litigation on the remnants.  For instance, the tax application may already be a prime target for a complaint about the PPACA’s  constitutionality, as well as its funding:

Even if the Affordable Care Act survives its first Supreme Court test— a ruling is due as early as today — the lawsuits won’t end. Citizens have already filed challenges to what critics call the law’s “death panel” and its impact on privacy rights, religious liberty and physician-owned hospitals. Still another potential lawsuit poses as great a threat to the law as the case now before the high court.

Under the guise of implementing the law, the Internal Revenue Service has announced it will impose a tax of up to $3,000 per worker on employers whom Congress has not authorized a tax. To make things more interesting: If the IRS doesn’t impose that unauthorized tax, the whole law could collapse.

The Act’s “employer mandate” taxes employers up to $3,000 per employee if they fail to offer required health benefits. But that tax kicks in only if their employees receive tax credits or subsidies to purchase a health plan through a state-run insurance “exchange.”

This 2,000-page law is complex. But in one respect the statute is clear: Credits are available only in states that create an exchange themselves. The federal government might create exchanges in states that decline, but it cannot offer credits through its own exchanges. And where there can be no credits, there is nothing to trigger that $3,000 tax.

If anything, leaving the remnants in place makes this a bigger headache for the courts, not less of one, just as it does for Obama and Democrats (as I also argue in my column).  With Congress explicitly excluding language for severability in the bill, the court has a Mack truck-sized opening to dump the whole bill rather than just surgically excise any offending portion.  The more I think about this, the more I think a middle ground solution might be less likely.

Of course, an adverse ruling will have the liberal legal establishment up in arms, angrily denouncing the Supreme Court — a process some have already begun as a means to shape the political battleground if ObamaCare gets overturned in part or in whole.  How can the Court turn its back on eighty years of commerce-clause precedent, they will scream, and find limitations of federal power?  Charles Lane, a center-left columnist at the Washington Post, reminds them that those precedents took place in an era when federal intervention was new and unprecedented itself, and that eighty years of experience may have America at a point where a consensus is developing that it’s neither proper nor beneficial:

In the 1930s, expanding federal power was innovative, promising. By blessing it, the court aligned itself with the wave of the future, in this country and globally. Ditto for the 1960s. Much of the legislation that resulted — from Social Security to the Voting Rights Act — was indeed progressive.

Today, however, there is nothing new about federal intervention — and much evidence from the past 70 years that big programs produce inefficiencies and unintended consequences.

The post-New Deal consensus about the scope of federal power has broken down amid national, and global, concern over the welfare state’s cost and intrusiveness — a sea change of which the tea party is but one manifestation. Obamacare itself, which has consistently polled badly, fueled that movement.

Much has been made of the fact that Republicans had no objection, constitutional or otherwise, when the individual mandate first surfaced. But that was two decades ago. In today’s changed intellectual, fiscal and political environment, seemingly lapidary constitutional phrases such as “commerce … among the several states” can acquire fresh meaning, as they did for the New Deal and at other points in the past.

In that sense, a rejection of ObamaCare would match the consensus we’ve seen in the polling over the last two years.  Americans don’t want a federal government that can mandate purchases of private-sector goods and services, no matter how beneficial the governing class believes them to be.  This could very well be a turning point that redefines and contracts federal reach — and if so, then the last two years will have been well worth the trouble.


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