Green Room

Obamacare: Know your enemy

posted at 9:13 pm on March 27, 2012 by

“What is of supreme importance in war is to attack the enemy’s strategy.” — Sun Tzu

Which means you have to know what the enemy’s strategy is. So just what do Obama and the Democrats want out of the SCOTUS review of Obamacare (ACA)?

There are three basic questions that the Supreme Court is trying to decide.

1. Should they decide now, or wait? (That was argued on Monday.)
2. If they decide now, then is the individual mandate unconstitutional? (Today.)
3. If the mandate is unconstitutional, then is it severable from the rest of the law? In other words, if SCOTUS strikes down the individual mandate, does that invalidate the rest of the law? (Tomorrow.)

For Obama, the ideal outcome is 1. Now. 2. Unconstitutional. 3. It’s severable.

In other words, the mandate goes away but the rest of the law remains in force. That makes private health insurance economically unviable, and the insurance companies will all exit the business or they will go out of business. At which point the Democrats will try to implement “single payer”, a total nationalization of the entire health care industry, financed by a huge rise in taxes.

Single Payer is what they always wanted. The bill wasn’t originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.

If the mandate is struck down, then Congress will have to act. There won’t be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.

That’s why the arguments yesterday and today were feeble: Obama wants to lose the first and second questions. Tomorrow’s argument is about severability, and that’s the one to watch.

And it’s going to be interestiing, because Congress didn’t include a severability clause in the ACA, which is usually routine boilerplate. It was in there originally, but got removed before the law was passed. The Obama administration is going to argue that nonetheless it should be treated as if there was a severability clause, despite evidence of Congressional intent to the contrary.

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In other words, the mandate goes away but the rest of the law remains in force. That makes private health insurance economically unviable, and the insurance companies will all exit the business or they will go out of business.

There is a unanimous decision from the Rehnquist court, Duquesne Power & Light, in which the Court said you could not regulate a business out of business.

Richard Epstein of U Chicago Law wrote an article on it for the WSJ in late 2010, and pointed out that this could be a problem for the “put the private insurer out of business” scheme. (And yes, I can see the EPA is trying to do this to the coal industry.)

Unfortunately, four of the justices on this decision are now gone from the Court (Rehnquist, Stevens, Souter & O’Conner), and if Obama got a few more SCOTUS picks, the Obama court might find a way to distinguish Duquesne Power.

Wethal on March 27, 2012 at 9:33 PM

I think we’re WAY overthinking this, if we convince ourselves Obama actually wants to lose the Mandate.

HOW would Democrats then introduce Single Payer? The GOP has the House. Obamacare is wildly unpopular. The Democrats will lose the Senate and – likely – the White House 7 months from now.

A win is a WIN, guys.

CoolCzech on March 27, 2012 at 10:22 PM

Wethal, the issue of putting the insurance companies out of business isn’t an issue. What would actually happen is that they’d cease doing health insurance, and concentrate on all the other kinds of insurance.

CoolCzech, they’re already talking about expanding Medicare, if the mandate goes away. Medicare is already a single payer system, and they’re talking about covering everyone with it.

Steven Den Beste on March 28, 2012 at 1:37 AM

Steven Den Beste on March 28, 2012 at 1:37 AM

Not all carriers offer multiple lines. Blue Cross is only a health insurance company, and it’s a large one. It’s highly unlikely it would try or be able to switch to auto and homeowners. That field is crowded enough already. It has no employees who know those lines.

Wethal on March 28, 2012 at 6:57 AM

HOW would Democrats then introduce Single Payer? The GOP has the House. Obamacare is wildly unpopular. The Democrats will lose the Senate and – likely – the White House 7 months from now.

The plan only works if Obama is reelected. If he is reelected, he simply has to veto anything else.

That would give us Health Care Armageddon with Obama and the media complex screaming to the public for single payer. As the catastrophe unfolds, the GOP will be painted as blocking the necessary ‘adjustment’ to Obamacare. “The Republican Congress won’t let us fix it!”

This is the danger of a reelected Obama who does not need to consider political consequences at all. Reelected Presidents are generally considered Lame Ducks, but Obama already has his agenda in place. All he needs to do is block his opponents from undoing it, and the veto pen will do that quite effectively.

fadetogray on March 28, 2012 at 7:17 AM

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Comments have been closed on this post but the discussion continues here.

Ed Morrissey on March 28, 2012 at 12:44 PM

Wethal on March 28, 2012 at 6:57 AM
Wasn’t it the Blue Cross Blue Shield guy who insisted on the individual mandate in exchange for their tacit support of the ObamaCare scheme?

txmomof6 on March 28, 2012 at 9:10 AM