Given that the third and final day of ObamaCare Supreme Court oral arguments are now complete, I’d like to focus more on the political implications of what has occurred thus far rather than spending time analyzing the details of the case, which several others have done with far more of expertise than I could ever provide. I particularly recommend the Wall Street Journal live blogs (day one summary, day two, and day three), and the Texas Public Policy Foundation’s comprehensive coverage at PPACAction.com.
While we won’t know until June whether ObamaCare will be struck down, either in part or as a whole, it’s certainly safe to say there’s a chance that the individual mandate will be declared unconstitutional, thus creating chaos that will need to be addressed one way or the other. Justice Kennedy and others made note of potential impending disaster in that regard today, as reported by Brett Kendall at the Wall Street Journal:
“Several justices express concern about doing harm to insurance companies if the mandate falls but the rest of the law is left in place. Justice Kennedy worries about imposing a ‘risk’ on insurance companies ‘that Congress never intended.’”
The Justices who made note of the trouble with striking down the individual mandate while keeping the law’s other provisions have a very good point. The entire aim of the mandate, in theory, was to avoid an adverse selection situation where only those who actively need insurance would seek it out while the healthy would then determine that remaining uninsured until they got sick was economically viable.
Given the chaos that could ensue if the law is partially upheld, which could certainly happen, means that Republicans need to be prepared to address either strike-down scenario – and in my humble opinion, a ruling that declares only the individual mandate unconstitutional (which the liberal Justices seemed to be pushing for today) would actually be worse, and absolutely destroy private insurance companies. Nevertheless, as I touched upon in my Day two analysis of the SCOTUS hearings over at my personal blog CorieWhalen.com, conservatives need to be very cautious in regards to declaring imminent victory in the event that the court does in fact declare ObamaCare unconstitutional; even as a whole. Winning a battle, important as it might be, certainly does not imply victory in an overall, extremely extensive war.
However, let’s assume for a moment that ObamaCare is declared unconstitutional in its entirety. The obligatory period of celebration will inevitably occur, but where will we really be as conservatives? Right back where we were when the left, during the Bush years and 2008 election, framed the narrative in a manner that convinced voters that Republicans had no solutions regarding this important matter. And honestly, is that premise even entirely inaccurate when Republican ideas regarding health care have in recent history been either virtually non-existent or only marginally less evil than the absurdities served up by Democrats? Republicans in the latter half of the 20th century, and particularly post-Reagan, have been incredible at screaming about Democratic proposals while inevitably compromising in the direction of further government growth – perhaps slowing the car headed toward the cliff down a few miles per hour, but in no way changing the vehicle’s direction.
Take, for example, the direction of the GOP after the defeat of HillaryCare. The ultimately ill-fated piece of legislation was killed just before the Republican Revolution of 1994 – but what did Republicans end up doing when they swept through the halls of Congress on the heels of their Contract with America? Regarding health care, at least, nothing of merit. The GOP at the time grew complacent and seemed to assume that staving off HillaryCare was a victory in itself rather than taking the opportunity to make pursuing decentralization and free market focused health care reforms a priority in their Contract with America.
This decision to not immediately play offense in a free market oriented manner regarding health care post HillaryCare eventually posed a massive political problem, because it led to the inference that Republicans were satisfied with the status quo, and ultimately aided in laying the groundwork for the onset of ObamaCare. And even worse than allowing Democrats to claim that Republicans were “doing nothing” on the issue of health care, the GOP fell into a left-defined parameter of “doing something” implying a federal, government-centric solution. This is where the Heritage Foundation’s flirtation with the individual health care mandate and Medicare Part D debacles come in.
As James Taranto wrote at the Wall Street Journal in October of last year in his piece, “ObamaCare’s Heritage:”
“Heritage did put forward the idea of an individual mandate, though it predated HillaryCare by several years. We know this because we were there: In 1988-90, we were employed at Heritage as a public relations associate (a junior writer and editor), and we wrote at least one press release for a publication touting Heritage’s plan for comprehensive legislation to provide universal ‘quality, affordable health care.’
As a junior publicist, we weren’t being paid for our personal opinions. But we are now, so you will be the first to know that when we worked at Heritage, we hated the Heritage plan, especially the individual mandate. ‘Universal health care’ was neither already established nor inevitable, and we thought the foundation had made a serious philosophical and strategic error in accepting rather than disputing the left-liberal notion that the provision of ‘quality, affordable health care’ to everyone was a proper role of government. As to the mandate, we remember reading about it and thinking: ‘I thought we were supposed to be for freedom.’”
And as for Medicare Part D, the legislation was introduced by then-Speaker Dennis Hastert (R-IL) in 2003 (when Republicans held the House, Senate and Presidency, mind you). Officially named the “Medicare Prescription Drug, Improvement, and Modernization Act,” it was supposedly created to address the issue of prescription drug costs that were hurting seniors on Medicare. While it’s great that Republicans wanted to address a critical issue, they went about it in all of the wrong ways when they had the numbers to exert control over the process. Instead of pursuing free market reforms, the MMA provided a subsidy for large employers aimed at discouraging them from eliminating private prescription coverage to retired workers. (In this instance, the Republicans kowtowed directly to the AARP).
The legislation was rife with new bureaucracy, and ultimately ended up costing far more than projected, as is typical of big government schemes. Initially estimated to cost $400 billion over ten years, only a month after the bill passed, it was calculated that the overall cost of program between 2006 (the first year the program started paying benefits) and 2015 would be $534 billion. And of course, to top things off, per a report by the Boards of Trustees of the Federal Hospital Insurance and Federal Supplementary Medical Insurance Trust Funds in 2009, the projected net cost of the program over the 2006 to 2015 period was actually adjusted $549.2 billion. How fiscally conservative!
At the end of the day, Republicans rammed through a wishy-washy piece of legislation that attempted to address a problem, mainly with government solutions, but was too timid to go all the way, resulting in the perfect opportunity for Democrats to demagogue, claiming Republicans didn’t go far enough and more government was needed, creating the perfect narrative for the onset of ObamaCare. And how could Republicans really respond when they had already conceded that federal solutions are what should be pursued?
However, despite the miserable failings of past Republicans, I certainly don’t believe all is lost. In fact, I think now more than ever, due largely in part to grassroots pressure from tea party activists and other limited government advocates, that conservatives have an opportunity to reshape the debate by getting out in front post-ObamaCare and making a solid case for free market health care reforms. Over at the Cato Institute, there’s a lot of fantastic work laying out viable, liberty oriented reforms, and there’s plenty that can be done to get the federal government out of the business of distorting prices and continually tying basic care to insurance and insurance to employment.
Not only could many common sense reforms pushed by Cato be pursued, but conservatives on all levels of government should also embrace the Health Care Compact, which would allow states to enact their own health care legislation independent of federal intervention by banding together in an interstate compact. Ultimately, decentralization and free market reforms will be the key to fixing health care as our federal debt to GDP ratio continues to skyrocket past the 100% mark. Republicans need to do all they can to work toward the goal of reducing bureaucracy so individuals can actually determine what the fair market value for the health services they seek are and can contract freely with their doctors.
Despite prior insanity, the potential failure of ObamaCare before the Supreme Court is ultimately a golden opportunity for Republicans. The GOP will be in a position to finally prove that it has learned its lesson about compromising in the direction of continuous government growth by providing a sensible alternatives to Democratic measures that actually shrinks government involvement in the health care industry.
As I noted above, it’s not as if there’s a dearth of policy work in this area; there’s plenty for the GOP to choose from – the party leaders just need to truly decide they’re actually for limited government and get their heads in the game instead of accepting as fact that government should continue to control our health care choices. Ultimately, what we as activists have to remember is that by expending energy fighting ObamaCare without a strong alternative free market plan to immediately implement legislatively means that as conservatives, we’ve given ground to the Democrats.
Make no mistake about it; the grassroots left is plotting their support of, in their wildest dreams, a single payer system, and at the very least, revisiting the public option idea as well as general Medicaid expansion. They will stop at nothing to define the parameters of the health care debate as inherently demanding a government-centric solution. This time, the Republican party cannot fall into the trap of being confined by that narrative. We can and will do better – and certainly, the more liberty Republicans you help us elect, the more up to this important task the party will be.
Corie Whalen is a political consultant based in Houston Texas. She currently serves as the national Secretary of the Republican Liberty Caucus.
The views expressed here are solely those of the author and do not necessarily reflect official positions of the RLC.
You may remember all the work we did last December to try to stop the passage of the National Defense Authorization Act because of provisions it contained which allowed for the indefinite detention of US citizens by the military in violation of due process and posse comitatus. Supporters of that act tried to hide the offending parts of the bill by changing the section numbers and they denied the intent and the significance of the wording of the problem sections, and they managed to pass it through the House and Senate despite the heroic efforts of leaders like Rep. Justin Amash and Sen. Rand Paul. 
If the new Defense Authorization bill passes then the military will be able to arrest US Citizens within the United States and hold them indefinitely without charge or trial in military prisons or try them before military tribunals without the protections guaranteed in the Bill of Rights.
