January 31, 2011

Beware of Narrow ObamaCare Victory

Statement of CFJ Executive Director Curt Levey on today’s ObamaCare decision:

ObamaCare’s individual insurance mandate is unconstitutional. So said a federal court in Florida today in the legal challenge to ObamaCare brought by 26 states. The court’s ruling should come as no surprise after a federal court in Virginia reached the same conclusion last month in the other leading ObamaCare case. The biggest news today is that the Florida court struck down the entire ObamaCare statute after finding that the unconstitutional individual mandate could not be severed – that is, separated – from the rest of the statute’s provisions.

Today’s decision signals, not only that the individual mandate is unlikely to survive its now-inevitable review by the Supreme Court, but also that if and when it meets its demise in the High Court, it is likely to take the entire ObamaCare statute with it. This new reality has very important policy implications for both President Obama and Congressional Republicans.

There is only one thing President Obama can do to ensure the survival of federal health care reform and that is to prevent the legal challenges to the individual mandate from reaching the Supreme Court. He can accomplish that only by negotiating with Republicans to repeal or substantially modify the ObamaCare statute, replacing it with a bipartisan health care reform package that does not include the individual insurance mandate. The result would be to moot and thus derail the legal challenges now hurtling towards the High Court.

Sure, Obama could take his chances on pulling out a win in the Supreme Court. But if things don’t go his way there, he will be left with little leverage to shape – or even pressure Republicans into passing – an alternative health care package, assuming he’s still in office.

The flip side of Obama’s dilemma is Republicans’ temptation to attempt a repeal of just the individual mandate, given that provision’s unpopularity and recognition that a full repeal of ObamaCare is virtually impossible at this time. Congressional Republicans must be cautious here because a successful repeal of the individual mandate would moot and thus doom legal challenges to the entire statute, arguably playing into the President’s hands.

If the individual mandate were the primary reason for conservative opposition to ObamaCare, we would be happy to hand the President a partial victory in which the lawsuits were derailed and ObamaCare minus the mandate were saved. But, as Ken Blackwell and Ken Klukowski have pointed out, “the ultimate goal in challenging the constitutionality of President Obama's health care law is not the mandate.” It’s the whole ObamaCare enchilada.

That’s because the individual mandate is just one of many reasons to oppose ObamaCare. Among the threats posed by the rest of the statute are skyrocketing premiums, increased unemployment due to insurance mandates on employers, draconian cuts to Medicare, a myriad of racial preferences, and the growth of a new federal bureaucracy with life and death power. A partial victory for Obama that leaves all those threats in place is a big loss for the American people.